The NATIONAL ORGANIZATION FOR
The REFORM OF MARIJUANA LAWS
(NORML), et al., Plaintiffs,
Griffin B. BELL, et al., Defendants.
Civ. A. No. 1897-73.
United States District Court,
District of Columbia.
Feb. 11, 1980.
Meyers, Washington, D. C., for plaintiffs.
MacKinnon, Dept. of Justice, Washington, D. C., for defendants.
Circuit Judge, and ROBINSON and PARKER, JJ.
TAMM, Circuit Judge:
action, the National Organization for The Reform of Marijuana Laws (NORML or plaintiff)
challenges the provisions of the Controlled Substances Act, 21 U.S.C. §§ 801-904 (1976)
(CSA or Act), that prohibit the private possession and use of marijuana. Plaintiff
asserts that the Act violates the Constitution's guarantees of privacy and equal
protection and its prohibition against cruel and unusual punishment. Finding the Act
to be a reasonable congressional attempt to deal with a difficult social problem, we must
reject this challenge and leave NORML to seek redress through political channels.
I. The Litigation
NORML filed this action October 10, 1973,1 seeking a
declaratory judgment that the CSA and District of Columbia Uniform Narcotic Drug Act,
D.C.Code §§ 33-401 to 425 (1973), are unconstitutional in prohibiting the private
possession and use of marijuana and requesting a permanent injunction enjoining
enforcement of those statutes.2 This court stayed the proceedings for a year while NORML tried to obtain
administrative relief through a proceeding to reclassify marijuana.3 After
the stay was vacated, the parties battled over preliminary motions for two years.
Finally, in June 1978, this court heard five days of evidentiary hearings before Judge
Aubrey Robinson. Both sides presented live and documentary evidence concerning the
effects of marijuana. Shortly thereafter, the parties submitted proposed findings of
fact on the effects of marijuana and legal arguments for the court's consideration.
II. The Controlled Substances Act
Congress passed the Comprehensive Drug Abuse
Prevention and Control Act of 1970 (DAPCA), 21 U.S.C. §§ 801-966 (1976), to fight this
nation's growing drug problem. The act was designed to
deal in a comprehensive fashion with the growing menace
of drug abuse in the United States (1) through providing authority for increased efforts
in drug abuse prevention and rehabilitation of users, (2) through providing more effective
means for law enforcement aspects of drug abuse prevention and control, and (3) by
providing for an overall balanced scheme of criminal penalties for offenses involving
H.R.Rep. No. 1444, 91st Cong., 2d Sess. 1 [hereinafter
cited as 1970 House Report], reprinted in  U.S.Code Cong. & Admin.News,
pp. 4566, 4567. It ended the patchwork federal effort against drug abuse and
signaled a national commitment to deal with this problem by committing federal funds for
In addition to the rehabilitation programs,
DAPCA also revised completely the federal drug laws dealing with drug control.5 Title II,
called the Controlled Substances Act (CSA), establishes five schedules for classifying
controlled substances according to specified criteria.6 Two criteria - the potential for
abuse and the medical applications of a drug - are the major bases for classification,7 along with
certain social and medical information. 21 U.S.C. §§ 811(c), 812(b).8 Congress,
on the basis of information gathered from extensive hearings,9 made the
initial classifications. Recognizing that scientific information concerning
controlled substances would change, Congress empowered the Attorney General to hear
petitions for the reclassification or removal of drugs from the schedules. Id.
Congress also has revamped the penalties for
distribution or possession of controlled substances. Heavy penalties - up to fifteen
years and a $25,000 fine - are authorized for violators who manufacture or distribute
Schedule I or II narcotic11 drugs. 21 U.S.C. § 841(b)(1)(A). The manufacture or distribution of
a nonnarcotic Schedule I or II substance, or a Schedule III drug, carries a possible five
year and $15,000 penalty. Id. § 841(b)(1)(B). The penalties for violations
involving Schedules IV and V are correspondingly lower. Penalties double for second
In setting the penalties, Congress sought to
reduce drug abuse by deterring suppliers through stiff penalties for drug distribution.
Section 848 of DAPCA contains a special minimum term of ten years and a possible
fine of $100,000 for anyone convicted of engaging in a "continuing criminal
enterprise" involving five or more people in a series of drug violations. Id.
§848.12 These heavier penalties for distribution, combined with strict
registration requirements for manufacturers and researchers of Schedule I and II
substances, id. §§ 821-29, are designed to reduce trafficking in dangerous
Penalties for possession are not so severe.
Possession of any controlled substance carries a maximum sentence of one year and a
$5,000 fine, with no distinctions being drawn among drugs in different schedules.
These penalties again double for a second offense. None of these penalties are
mandatory, however, and this flexibility lets a judge impose a sentence that takes account
of individual circumstances. In addition, a court may place first offenders on
probation for one year; upon successful completion of probation, court proceedings are
dismissed without an adjudication of guilt, and the conviction is not placed on the
individual's record. Id. § 844(b)(1). A special provision places
those dealing in a small amount of marijuana for no compensation under the possession
penalties; thus, someone giving small amounts to friends is not subject to the stiff
penalties for distribution. Id. § 841(b)(4).
Marijuana (cannabis sativa L.) is a
psychoactive drug made of the leaves, flowers, and stems of the Indian Hemp plant.
It derives its psychoactive properties from delta-9-tetrahydrocannabinol (THC), which
exists in varying concentrations in the plant, depending on its origin, growing
conditions, and cultivation. Marijuana and Health: A Report to the Congress from the
Secretary, Department of Health, Education, and Welfare 13-14 (1971) [hereinafter cited as
1971 HEW Report]. The concentration of THC within the sections of the plant also
varies widely. The resin contains the greatest concentration of THC; smaller amounts
are found, respectively, in the flowers, the leaves, and the stems. The most potent
form of the drug, hashish, is prepared from the resins of the flowers and contains 5-12%
THC. Marijuana generally found in the United States is weaker, with around 1% THC.
National Commission on Marihuana and Drug Abuse, Marihuana: A Signal of
Misunderstanding 50-51 (1972) [hereinafter cited as Signal of Misunderstanding].
The drug produces a number of physiological and
psychological effects. The short-term physiological effects have been well
documented. They are reddening of the whites of the eye, dryness in the mouth,
increased pulse rate, and impaired motor responses.13 Marihuana and Health: Fifth Annual
Report to the U.S. Congress from the Secretary of Health, Education, and Welfare 84 (1975)
[hereinafter cited as 1975 HEW Report]; 1971 HEW Report, supra at 57-58.
The short-term psychological effects are equally well known:
At low, usual "social" doses, the intoxicated individual may
experience an increased sense of well-being; initial restlessness and hilarity followed by
a dreamy, carefree state of relaxation; alteration of sensory perceptions including
expansion of space and time; and a more vivid sense of touch, sight, smell, taste, and
sound; a feeling of hunger, especially a craving for sweets; and subtle changes in thought
formation and expression. To an unknowing observer, an individual in this state of
consciousness would not appear noticeably different from his normal state.
At higher, moderate doses, these same reactions
are intensified . . . . The individual may experience rapidly changing emotions,
changing sensory imagery, dulling of attention, more altered thought formation and
expression such as fragmented thought, flight of ideas, impaired immediate memory,
disturbed associations, altered sense of self-identity and, to some, a perceived feeling
of enhanced insight.
At very high doses, psychotomimetic phenomena
may be experienced. These include distortions of body image, loss of personal
identity, sensory and mental illusions, fantasies and hallucinations.
Signal of Misunderstanding, supra at 56. The intensity of
these reactions depends on dosage, method of use, metabolism, attitude and setting,
tolerance, duration of use, and pattern of use. Id. at 50-53.14
Experiences under marijuana intoxication are
usually pleasurable, but negative reactions are not infrequent. See id. at 56.
These negative reactions include distortion of body image, depersonalization, acute
panic anxiety reaction, nausea, and, more rarely, psychosis. Marihuana and Health:
Sixth Annual Report to the U.S. Congress from the Secretary of Health, Education, and
Welfare 22-23 (1976) [hereinafter cited as 1976 HEW Report]; 1975 HEW Report, supra
at 86-87; 1971 HEW Report, supra at 57. These reactions may be caused or
exaggerated by pre-existing psychological problems. See 1976 HEW Report, supra
The long-term effects of marijuana are less
well known. Studies have dispelled many of the myths about the drug: marijuuana is
not a narcotic, not addictive,15 and generally not a stepping-stone to other, more serious drugs.16
Furthermore, it causes neither aggressive behavior nor insanity. L. Grinspoon,
Marijuana Reconsidered 230-322 (2d ed. 1977).
Despite these findings, questions about
long-term use remain. Studies have indicated that marijuana may affect adversely the
lungs and the endocrine, the immunity, and the cardiovascular systems. Some of these
studies are disputed, see L. Grinspoon, supra at 376, but an examination
of these adverse findings illustrates the important questions still remaining about
Smoking marijuana may contribute to lung
disorders in the same way as tobacco. Marijuana smoke contains more tar than tobacco
smoke, and the typical user inhales this smoke in his lungs and holds it there to derive
the greatest effect from the THC. J. Graham, Cannabis and Health 283 (1976). The
smoke irritates the lung tissue, and with heavy long-term use, may impair lung
functions. 1976 HEW Report, supra at 14-15.
Marijuana may also affect the levels of the
male sex hormone testosterone and other pituitary hormones. Several studies have
found lower levels of testosterone after marijuana use. Even where lower
testosterone levels were found, they were still within acceptable limits, 1976 HEW Report,
supra at 15; L. Grinspoon, supra at 388-89, but the possibility of
damage from long-term, heavy use still exists. Researchers are particularly
concerned about marijuana's effects on pubertal males,17 males with impaired sexual functioning,
and pregnant women. 1975 HEW Report, supra at 81-82.
In a 1974 study, scientists found evidence that
marijuana use impaired the functioning of the immunity system, causing a reduction in the
white blood cell count. 1976 HEW Report, supra at 16. Later studies
reached similar conclusions, 1975 HEW Report, supra at 110, while others have found no
such reduction. More study of this question is needed, but conducting research in
this and other areas involving physiological changes from marijuana is extremely
difficult, for researchers cannot even agree on appropriate procedures. See L.
Grinspoon, supra at 389.
Marijuana affects the cardiovascular system by
accelerating the heart rate. Studies also indicate that it may weaken temporarily
contractions of heart muscle, posing dangers for smokers with heart disease or
abnormalities. 1976 HEW Report, supra at 14. Studies on healthy young
men have revealed no cardiovascular effects, but those with heart problems may experience
pain due to less efficient delivery of oxygen in the blood. 1975 HEW Report, supra
at 80. The long-range consequences of these temporary changes in the cardiovascular
system are difficult to assess, but they may be significant and require further study.
In addition to these problems, other tests have
found negative aspects to marijuana use. Amotivational difficulties and changes in
brain cells, chromosomes, and cell metabolism have been noted in various studies.
1976 HEW Report, supra at 16-20; 1975 HEW Report, supra at 82-83;
Signal of Misunderstanding, supra at 61-65. These findings have not been
corroborated, however, and other research has reached contradictory conclusions. See
L. Grinspoon, supra at 54, 287-90, 387, 390-91. As with the other areas,
these questions demand further scientific study to determine conclusively the long-term
effects of marijuana. Although we now know that marijuana is not the
"killer" drug, as branded in the past, its long-term effects are still an open
question and must be approached as unresolved. These lingering questions must be
kept in mind in considering the legal issues.
IV. Legal Issues
A. Right of Privacy
NORML first contends the prohibition on the private
possession and use of marijuana violates the constitutional rights of privacy in one's
home, see Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969),
and individual autonomy, see Roe v. Wade, 410 U.S. 113, 93 S.Ct.
705, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678,
14 L.Ed.2d 510 (1965). These rights, being fundamental, receive the highest
constitutional protection and must prevail over governmental restrictions unless the
government can demonstrate "a compelling state interest," Kramer v. Union
Free School District No. 15, 395 U.S. 621, 627, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583
(1969). In NORML's view, no rational basis exists for the marijuana prohibition, and
therefore the statute must be declared invalid.
In weighing this claim, this court must examine
the roots of this modern concept of privacy.18 The Supreme Court first discussed privacy as a constitutional right in Griswold
v. Connecticut. In that case, the Court struck down a Connecticut statute
prohibiting the use of contraceptives by married couples. Justice Douglas, in his
opinion for the Court, stated that a right of privacy exists in the "penumbras"
of the Bill of Rights,19 381 U.S. at 484, 85 S.Ct. at 1681, and that marriage falls "within the zone
of privacy created by several fundamental constitutional guarantees," id. at
485, 85 S.Ct. at 1682. The Court, however, gave no indication as to the extent of
this marital right of privacy.
In Roe v. Wade, 410 U.S. 113, 93 S.Ct.
705, 35 L.Ed.2d 147 (1973), the Court struck down state statutes prohibiting abortions in
the early stages of pregnancy. Justice Blackmun, in his majority opinion, noted that
"[t]he Constitution does not explicitly mention any right of privacy." Id. at
152, 93 S.Ct. at 726. Nonetheless, "the Court has recognized that a right of
personal privacy, or a guarantee of certain areas or zones of privacy does exist under the
Constitution." Id. On the question of abortion, the Court
decided this privacy right was "broad enough to encompass a woman's decision whether
or not to terminate her pregnancy," id. at 153, 93 S.Ct. at 727.
This right of privacy is not absolute, however.20 Justice
Blackmun made clear that this right includes only those "personal rights that can be
deemed 'fundamental' or 'implicit in the concept of ordered liberty . . . .'" Id.
at 152, 93 S.Ct. at 726 (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58
S.Ct. 149, 152, 82 L.Ed. 288 (1937)). The Court expressly has recognized as
fundamental those rights regarding familial concerns and obligations: marriage, Loving
v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); contraception, Eisenstadt
v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); child rearing, Pierce
v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); procreation,
Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); familial
living arrangements, Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct.
1932, 52 L.Ed.2d 531 (1977) (plurality opinion).
In Stanley v. Georgia, the Supreme
Court based the right of privacy on the first amendment right to receive information and a
right of privacy in the home. At issue in Stanley was the possession of
obscene materials that fell outside first amendment protection under Roth v. United
States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Nevertheless, the
Court held that their possession in the home was protected.
This right to receive information and ideas, regardless
of their social worth, . . . is fundamental to our free society. Moreover, in the
context of this case - a prosecution for mere possession of printed or filmed matter in
the privacy of a person's own home - that right takes on an added dimension. For
also fundamental is the right to be free, except in very limited circumstances, from
unwanted governmental intrusions into one's privacy.
394 U.S. at 564, 89 S.Ct. at 1247-48 (citation omitted).
The Court concluded:
If the First Amendment means anything, it means that a
State has no business telling a man, sitting alone in his own house, what books he may
read or what films he may watch. Our whole constitutional heritage rebels at the
thought of giving government the power to control men's minds.
Id. at 565, 89 S.Ct. at 1248.
The Supreme Court defined the contours of Stanley
and this right of privacy in the home in four subsequent pornography decisions, United
States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973), United
States v. 12 200-ft. Reels of Super 8mm. Film, 413 U.S. 123, 93 S.Ct, 2665, 37
L.Ed.2d 500 (1973), Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628,
37 L.Ed.2d 446 (1973), and United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410,
28 L.Ed.2d 813 (1971). In these cases, the Court declined to expand this concept of
privacy; instead it construed the right strictly to apply only to the home. The
Court refused to find any concurrent right to transport obscene materials across state
lines for personal use, United States v. Orito, 413 U.S. at 142-43, 93 S.Ct, at
2677, to import obscene items for personal use, United States v. 12 200-ft. Reels of
Super 8mm. Film, 413 U.S. at 128, 93 S.Ct. at 2668, or to distribute obscene
materials, United States v. Reidel, 402 U.S. at 356, 91 S.Ct. at 1412.
According to the Court, the right of " 'privacy of the home' . . . was hardly more
than a reaffirmation that 'a man's home is his castle,' " Paris Adult Theatre I
v. Slaton, 413 U.S. at 66, 93 S.Ct. at 2640. As such, it receives "special
safeguards," United States v. Orito, 413 U.S. at 142, 93 S.Ct. at 2677, but
the protection "is restricted to a place, the home." Paris Adult
Theatre I v. Slaton, 413 U.S. at 66 n.13, 93 S.Ct. at 2640 n.13.
 NORML argues that this right of
privacy in general and privacy in the home forbids any governmental ban on private
possession and use of marijuana. Such a reading stretches the right of privacy too
far. This right exists only in conjunction with specific constitutional guarantees
that serve as the substantive basis for the privacy right, Paul v. Davis, 424
U.S. 693, 712-13, 96 S.Ct. 1155, 1165-66, 47 L.Ed.2d 405 (1976).21 The
recognized substantive rights are " 'fundamental' or 'implicit in the concept of
ordered liberty,' " id. at 713, 96 S.Ct. at 1166 (citation omitted), and
"[t]he activities detailed as being within this definition . . . relat[e] to
marriage, procreation, contraception, family relationships, and child rearing and
 Smoking marijuana does not qualify as
a fundamental right, Ravin v. State, 537 P.2d 494, 502 (Alaska 1975) (dictum).23 In
ascertaining whether a right is fundamental, a court must determine whether the right is
"explicitl or implicitly guaranteed by the Constitution." San Antonio
Independent School District v. Rodriguez, 411 U.S. 1, 33-34, 93 S.Ct. 1278-1297, 36
L.Ed.2d 16 (1973). On this issue, Justice Stewart once noted:
The Court . . . does not "pick out
particular human activities, characterize them as 'fundamental,' and give them added
protection * * * ." To the contrary, the Court simply recognizes, as it must,
an established constitutional right, and gives to that right no less protection than the
Constitution itself demands.
Shapiro v. Thompson, 394 U.S. 618, 642, 89
S.Ct. 1322, 1335, 22 L.Ed.2d 600 (Stewart, J., concurring). Smoking marijuana
receives no explicit or implicit constitutional protection. The act of smoking does
not involve the important values inherent in questions concerning marriage, procreation,
or child rearing. Moreover, its use predominantly as a "recreational drug"24 undercuts any
argument that its use is as important as, e.g., use of contraceptives, see
Eisenstadt v. Baird, discussed at p. 131 supra.25 As the
Alaska Supreme Court noted in discussing a right to private use of marijuana, "[few
would believe they have been deprived of something of critical importance if deprived of
marijuana." Ravin v. State, 537 P.2d at 502. Private possession of
marijuana, not being what Justice Stewart called an "established constitutional
right," cannot be deemed "fundamental."26
 NORML tries to bootstrap the Stanley
right of privacy in the home into a fundamental right that protects all activities taking
place therein. This reading reverses the proper analysis. The home offers
refuge for activities grounded in other protected rights. The right protected in Stanley
was the first amendment right to read and receive information even if the information
itself was not constitutionally protected. Stanley v. Georgia, 394 U.S. at
564-66, 89 S.Ct. at 1247-48. Without that first amendment right at issue, Stanley
would have no right to privacy in the home. The Court specifically stated:
What we have said in no way infringes upon the power of
the State or Federal Government to make possession of other items, such as narcotics,
firearms, or stolen goods, a crime. Our holding in the present case turns upon the
Georgia statute's infringement of fundamental liberties protected by the First and
Fourteenth Amendments. No First Amendment rights are involved in most statutes
making mere possession criminal.
Id. at 568 n.11, 89 S.Ct. at 1249-50 n.11.27 Finding
no fundamental right to private use and possession of marijuana, this court must reject
NORML's privacy claim.28
 NORML further contends that the CSA
violates the equal protection component of the due process clause.29 First,
it argues that the classification of marijuana, a relatively harmless drug, as a
controlled substance violates equal protection. Second, NORML believes that, even if
marijuana may be controlled, its classification as a Schedule I drug is infirm: placement
in Schedule I is both underinclusive in failing to include as a controlled substance drugs
such as alcohol and nicotine, which satisfy Schedule I criteria, and overinclusive for
establishing the same penalties for possession of marijuana as for all other controlled
substances and for including marijuana in Schedule I with the more dangerous narcotics and
opiates. For the reasons stated below, this court rejects these contentions.
Legislation that does not affect a "fundamental"30 right or a "suspect" class need
only bear a rational relationship to a legitimate state interest.
The distinctions drawn by a challenged statute must bear
some rational relationship to a legitimate state end and will be set aside as violative of
the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of
that goal. Legislatures are presumed to have acted constitutionally even if source
materials normally resorted to for ascertaining their grounds for action are otherwise
silent, and their statutory classification will be set aside only if no grounds can be
conceived to justify them.
McDonald v. Board of Election Commissioners,
394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969). This standard
of judicial review gives legislatures wide discretion and permits them to attack problems
in any rational manner. Williamson v. Lee Optical of Oklahoma, Inc., 348
U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). "In an equal protection case of
this type . . ., those challenging the legislative judgment must convince the court that
the legislative facts on which the classification is apparently based could not reasonably
be conceived to be true by the governmental decisionmaker." Vance v.
Bradley, 440 U.S. 93, 111, 99 S.Ct 939, 950, 59 L.Ed.2d 171 (1979). 'The
classification will be upheld unless "the varying treatment of different groups or
persons is so unrelated to the achievement of any combination of legitimate purposes that
[a court] can only conclude that the legislature's actions were irrational."
Id. at 97, 99 S.Ct. at 943. "In short, the judiciary may not sit as a
superlegislature to judge the wisdom or desirability of legislative policy determinations
made in areas that neither affect fundamental rights nor proceed along suspect lines . . .
." New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49
L.Ed.2d 511 (1976).
1. Classification as a Controlled
 The inclusion of marijuana as a
controlled substance under the CSA easily satisfies this deferential rationality
standard. Congress gave the CSA provisions concerning marijuana considerable
attention. It recognized that much of the information regarding marijuana was
inaccurate31 and that bias and ignorance had perpetuated many myths about the consequences
and dangers of marijuana use. Despite all the concern over the drug, few reliable
scientific studies existed that could give accurate information to the legislators.
Representative Cohelan acknowledged this lack of accurate information on marijuana during
the House discussion of the bill: "Much remains to be done to find out the effects of
marijuana. Assertions from both sides are not hard to find, but there is precious
little hard clinical data on this subject." 116 Cong.Rec. 33658 (1970).
Unsure of marijuana's effects, Congress placed marijuana in Schedule I, with its program
of strict controls, until it could obtain more scientific information on the drug's
effects. In so doing, Congress followed the recommendation of the Department of
Health, Education, and Welfare, which had suggested classification in Schedule I until
further tests could be completed.32
Inclusion of marijuana as a controlled
substance in 1970 certainly was rational. The information then available indicated
that marijuana might well have substantial detrimental effects,33 and Congress
thus reasonably could decide to include the drug as a controlled substance rather than
leave it unregulated. NORML argues that, although classification of marijuana as a
controlled substance in 1970 might have been rational, the scientific evidence available
today establishes that "private possession and use of marijuana by adults [do] not
pose any significant danger to the public health, safety or welfare." Brief for
Plaintiff at 18. NORML therefore asserts the classification of marijuana as a
controlled substance is no longer rational and invokes United States v. Carolene
Products Co., 304 U.S. 144, 153, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938): "the
constitutionality of a statute predicated upon a particular state of facts may be
challenged by a showing to the court that those facts have ceased to exist."
(citation omitted). See also Abie State Bank v. Bryan, 282 U.S. 765, 51
S.Ct. 252, 75 L.Ed. 690 (1931).
The record, however, is not so clear as NORML
contends. Experts still strongly disagree about the safety of marijuana, and its
long-term effects remain an open question. Studies indicate that marijuana may
impair the circulatory, the endocrine, and the immunity systems of the body, alter
chromosomes, and change cell metabolism.34 Although many dispute these findings, this contradictory evidence
demonstrates that important questions about marijuana use persist.
Given the continuing debate over marijuana,
this court must defer to the legislature's judgments on disputed factual issues. In
the Carolene Products decision on which NORML relies, the Supreme Court
recognized the importance of this policy of judicial restraint:
[I]nquiries, where the legislative judgment is drawn in
question, must be restricted to the issue whether any state of facts either known or which
could reasonably be assumed affords support for [the classification]. Here the
demurrer challenges the validity of the statute on its face and it is evident from all the
considerations presented to Congress, and those of which we may take judicial notice, that
the question is at least debatable . . . . As that decision was for Congress,
neither the findings of a court arrived at by weighing the evidence, nor the verdict of a
jury can be substituted for it.
304 U.S. at 154, 58 S.Ct. at 784-85. The classification need not
change continually as more information becomes available. Congressional action must
be upheld as long as a rational basis still exists for the classification. The
continuing questions about marijuana and its effects make the classification rational.
Furthermore, judicial deference is
appropriate when difficult social, political, and medical issues are involved.
Courts should not step in when legislators have made policy choices among conflicting
alternatives. That this court might resolve the issues differently is
immaterial. "When Congress undertakes to act in areas fraught with medical and
scientific uncertainties, legislative options must be especially broad and courts should
be cautious not to rewrite legislation, even assuming, arguendo, that judges with
more direct exposure to the problem might make wiser choices." Marshall v.
United States, 414 U.S. 417, 427, 94 S.Ct. 700, 706, 38 L.Ed.2d 618 (1974).
Thus, this court should not substitute its judgment for the reasonable determination made
by Congress to include marijuana under the CSA.35
2. Classification in Schedule I
In a related
equal protection challenge, NORML argues that classification of marijuana in Schedule I is
irrational as being both underinclusive and overinclusive. The CSA does not regulate
alcohol and tobacco, which are more harmful than marijuana, and it places marijuana in the
same schedule with such dangerous substances as heroin and other narcotics. Thus,
even if the classification of marijuana as a controlled substance is rational, the
plaintiff believes that the legislation nonetheless is unconstitutional because
marijuana's treatment within the Act is irrational in relation to other controlled
 "Underinclusive classifications
do not include all who are similarly situated with respect to a rule, and thereby burden
less than would be logical to achieve the intended government end." L. Tribe,
American Constitutional Law, § 164, at 997 (1978). To be successful in a challenge
based on underinclusiveness, plaintiff must show that the governmental choice is "
'clearly wrong, a display of arbitrary power, not an exercise of judgment,' " Mathews
v. de Castro, 429 U.S. 181, 185, 97 S.Ct. 431, 434, 50 L.Ed.2d 389 (1976) (quoting Helvering
v. Davis, 301 U.S. 619, 640, 57 S.Ct. 904, 908, 81 L.Ed. 1307 (1937)). Few
challengers can sustain such a heavy burden of proof. Courts have recognized the
very real difficulties under which legislatures operate - difficulties that arise due to
the nature of the legislative process and the society that legislation attempts to
reshape. As Professor Tribe has explained: "underinclusive" or
"piecemeal legislation is a pragmatic means of effecting needed reforms, where a
demand for completeness may lead to total paralysis . . . ." L. Tribe, supra §
16-4, at 997.
 Legislatures have wide discretion in
attacking social ills. "A State may 'direct its law against what it deems the evil as
it actually exists without covering the whole field of possible abuses, and it may do so
none the less that the forbidden act does not differ in kind from those that are
allowed."' Hughes v. Superior Court, 339 U.S. 460, 468, 70 S.Ct. 718, 723, 94
L.Ed. 985 (1950) (quoting Central Lumber Co. v. South Dakota, 226 U.S. 157, 160, 33
S.Ct. 66, 67, 57 L.Ed. 164 (1912)). Failure to address a certain problem in an otherwise
comprehensive legislative scheme is not fatal to the legislative plan.
[A] legislature traditionally has been allowed to take
reform "one step at a time, addressing itself to the phase of the problem which seems
most acute to the legislative mind," Williamson v. Lee Optical of Oklahoma, Inc.,
348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955); and a legislature need not run
the risk of losing an entire remedial scheme simply because it failed, through
inadvertence or otherwise, to cover every evil that might conceivably have been attacked.
McDonald v. Board of Election Commissioners, 394 U.S. at
809, 89 S.Ct. at 1409.
 Given this policy of legislative freedom in
confronting social problems the exclusion of alcohol and tobacco from the CSA does not
render the scheme unconstitutional. Different legislative schemes control the sale
and distribution of alcohol and tobacco, see, e. g., 26 U.S.C. §§ 5661(b), 5681,
5683, 5686 (1976). The specific exemption of alcohol and tobacco from the provisions
of the CSA, 21 U.S.C. § 802(6) (1976), reflects Congress's view that other regulatory
schemes are more appropriate for alcohol and tobacco.36 That alcohol and tobacco may have
adverse effects on health does not mean the CSA is the only proper means of regulating
these drugs, nor does it mean that marijuana should be treated identically. As a
Presidential commission on drug abuse pointed out, "While alcoholism constitutes a
major social problem, surely it is not valid to justify the adoption of a new abuse on the
basis that it is no worse than a presently existing one. The result could only be
added social damage from a new source." Task Force Report: Narcotics,
Marijuana, and Dangerous Drugs (1969), reprinted in 115 Cong.Rec. 25454,
25456 (1969). Congress, having the power to deal with drug abuse in any reasonable
manner, decided to exclude alcohol and tobacco from the CSA. This court will not
disturb that judgment.
A law also
may be challenged for including within a prohibited class an item that does not rationally
belong with the other members of that class. NORML once again draws its support from
the Carolene Products decision:
[T]he constitutionality of a statute, valid on its face,
may be assailed by proof of facts tending to show that the statute as applied to a
particular article is without support in reason because the article, although within the
[particular] class, is so different from others of the class as to be without the reason
for the prohibition.
United States v. Carolene Products Co., 304
U.S. at 153-54, 58 S.Ct. at 784. The plaintiff here argues that penalties for
possession of marijuana should be lower than those authorized for other, more dangerous
Schedule I drugs. Moreover, NORML contends marijuana's classification in Schedule I
is impermissible because the drug does not fit the statutory criteria for placement in
"rational basis" test governs this challenge to the relative severity of
penalties under the CSA. See Duffy v. Wells, 201 F.2d 503, 506 (9th Cir.
1952), cert. denied, 346 U.S. 861, 74 S.Ct. 74, 98 L.Ed. 373 (1953). Under
this analysis, the penalty scheme is not irrational.37 Congress, in establishing the same
penalty for all possessory offenses involving controlled substances, has chosen to
concentrate on distribution and not possession of drugs. The CSA provides stiff
penalties for sale or distribution according to the schedule classifications, while simple
possessory offenses are misdemeanors. When deciding on penalties, Congress need not
consider only the potential harm from a drug; it also may consider the magnitude of the
social problem, the deterrent effect of a particular penalty, and any special regulatory
problems involved with a penalty scheme. See Gore v. United States, 357
U.S. 386, 393, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405 (1958). In determining penalties,
the legal classification of a drug does not have to match its medical classification, see
United States v. Brookins, 383 F.Supp. 1212, 1214-15 (D.N.J.1974) (different legal
and medical classification of cocaine permitted), aff'd mem., 524 F.2d 1404 (3d
Cir. 1975), for Congress may consider other issues not involving a drug's medical
properties. In addition, the penalties do not need to be graduated according to the
potential harm of the drug. On this point, the Supreme Court has stated: "[T]he
Due Process Clause of the Fourteenth Amendment does not, nor does anything in the
Constitution, require a State to fix or impose any particular penalty for any crime it may
define or to impose the same or 'proportionate' sentences for separate or independent
crimes." Williams v. Oklahoma, 358 U.S. 576, 586, 79 S.Ct. 421, 427,
3 L.Ed.2d 516 (1959). See also Pennsylvania ex rel. Sullivan v. Ashe,
302 U.S. 51, 55, 58 S.Ct. 59, 60, 82 L.Ed. 43 (1937).
 As noted above, lingering uncertainties
about the effects of marijuana still exist, and Congress reasonably resolved these
questions by penalizing its possession. Furthermore, Congress was aware of the
differing views on marijuana control38 when it classified the drug and set penalties for possession and
distribution. Indeed, marijuana received special consideration: lower penalties were
set for distribution of small amounts of the drug for no compensation. 21 U.S.C. §
841(b)(4). Congress nonetheless rejected attempts to provide lower penalties for
marijuana possession, fearing that such action would create the impression that marijuana
use was acceptable. See 116 Cong.Rec. 1653 (1970) (statement of Sen. Dodd).
These actions all indicate that Congress rationally dealt with the problem of
penalties and sentencing in passing the CSA; NORML's contention that the marijuana
penalties are too severe must be rejected.
2) Classification in Schedule I
 NORML argues that marijuana does
not belong in Schedule I, for it does not satisfy that schedule's statutory criteria -
high potential for abuse, no medically accepted use, and no safe use of the drug even
under medical supervision. 21 U.S.C. § 812(b)(1) (1976). The Government
disagrees and contends that all three criteria are met. It claims the drug has a
"high potential for abuse," see 1970 House Report, supra at 34-35, reprinted
in  U.S.Code Cong. & Admin.News at pp. 4601-02, in that millions of
Americans use marijuana on their own initiative rather than on the basis of medical
advice. While tests have indicated that marijuana may have therapeutic uses in the
treatment of glaucoma and cancer, 1976 HEW Report, supra at 25, the Food and Drug
Administration does not currently accept it for any form of medical treatment. See 44
Fed.Reg. 36123, 36126 (1979). Finally, the Government claims that marijuana cannot
be used safely due to the differing concentrations of THC in cannabis. Id.;
see page 128 supra.
Even assuming, arguendo, that marijuana does
not fall within a literal reading of Schedule I, the classification still is rational.39 Placing
marijuana in Schedule I furthered the regulatory purposes of Congress. The statutory
criteria of section 812(b)(1) are guides in determining the schedule to which a drug
belongs, but they are not dispositive. Indeed, the classifications at times cannot
be followed consistently, and some conflict exists as to the main factor in classifying a
drug - potential for abuse or possible medical use.40 The district court in United
States v. Maiden, 355 F.Supp. 743 (D.Conn.1973), discussed this problem in rejecting
the identical claim raised here by NORML:
[The statutory classifications] cannot logically be read as cumulative
in all situations. For example finding (B) for Schedule I requires that "The
drug or other substance has no currently accepted medical use in treatment in the United
States." Finding (B) for the other four schedules specifies that the drug has a
currently accepted medical use. At the same time, finding (A) requires that the drug
has a "high potential for abuse" for placement in Schedule I, but a
"potential for abuse less than the drugs or other substances in Schedules I and
II" for placement in Schedule III. If the findings are really cumulative, where
would one place a drug that has no accepted medical use but also has a potential for abuse
less than the drugs in Schedules I and II? According to finding (A) for Schedule III
it belongs in Schedule III, but finding (B) for that schedule precludes Schedule III;
according to finding (B) for Schedule I it belongs in Schedule I, but finding (A) for that
schedule appears to preclude Schedule I.
Id. at 749 n. 4.
The legislative history also indicates the
statutory criteria are not intended to be exclusive. The House report states that
"[a]side from the criterion of actual or relative potential for abuse, subsection (c)
of section 201 [21 U.S.C. § 811(c)] lists seven other criteria . . . which must be
considered in determining whether a substance meets the specific requirements specified in
section 202(b) [21 U.S.C. § 812(b)] for inclusion in particular schedules . . . ."
1970 House Report, supra at 35, reprinted in  U.S.Code
Cong. & Admin.News at 4602. The criteria listed in section 811(C)41 include the
state of current knowledge, the current pattern of abuse, the risk to public health, and
the significance of abuse. These more subjective factors significantly broaden the
scope of issues to be considered in classifying a drug. Given these other concerns,
Congress might well want marijuana in Schedule I for regulatory purposes. Such a
classification carries heavier penalties for sale, distribution, and importation, thus
aiding law enforcement officials in their effort to reduce the supply of marijuana.
In addition, Congress itself made the initial
classifications, 21 U.S.C. § 812(c), and established a procedure for reclassifying drugs
and controlled substances: "Schedules I, II, III, IV, and V shall, unless and
until amended pursuant to section 811 of this title [21 U.S.C. § 811],
consist of the following drugs and other substances . . . ." 21 U.S.C. §
812(c) (emphasis added). In making the initial determination, Congress placed
marijuana in Schedule I. The clear meaning of section 812(c) is that Congress
intended marijuana to remain in Schedule I until such time as it might be reclassified by
the Attorney General on the basis of more complete scientific information about the drug.
In such a reclassification hearing, the statutory criteria would be the guides to
determining the most appropriate schedule for marijuana. By providing for periodic
review and constant revision of drug classifications, Congress enacted a sensible
mechanism for scrutinizing the classification of marijuana. As Judge Feinberg stated
in United States v. Kiffer :
[T]he very existence of the statutory scheme
indicates that, in dealing with the "drug" problem, Congress intended
flexibility and receptivity to the latest scientific information to be the hallmarks of
its approach. This . . . is the very antithesis of the irrationality [plaintiff]
attributes to Congress.
477 F.2d 349 at 357.
The legislative scheme under section 811 offers
a flexible means of reclassifying controlled substances, and the Attorney General may
reclassify marijuana pursuant to that scheme.42 The propriety of any administrative
determination on the reclassification of marijuana is not before this court.43 The
constitutional legitimacy of the classification of marijuana in Schedule I is challenged,
however, and this court concludes that the classification is constitutionally permissible.
Thus, plaintiff's equal protection challenge must be rejected.44
c. Cruel and Unusual Punishment
NORML argues that the penalties under the CSA for marijuana possession violate the eighth
amendment's ban on cruel and unusual punishment. The plaintiff contends that a
one-year sentence and $5,000 fine are so disproportionate to the nature of the offense
that they must be overturned. Robinson v. California, 370 U.S. 660, 82
S.Ct. 1417, 8 L.Ed.2d 758 (1962); Weems v. United States, 217 U.S. 349, 30 S.Ct.
544, 54 L.Ed. 793 (1910).45 This argument must be rejected.
 The Supreme Court has established
a framework for examining challenges to the severity of a criminal statute. See
Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977)
(plurality opinion of White, J.); Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct.
2909, 2925, 49 L.Ed.2d 859 (1976) (plurality opinion of Stewart, J.); Robinson v.
California; Weems v. United States. A court must compare the severity
of the offense being punished and its sentence with the punishment imposed for other
crimes in the jurisdiction and for the same crime in other jurisdictions. In
evaluating these factors, a court must consider "the evolving standards of decency
that mark the progress of a maturing society." Trop v. Dulles, 356
U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 596 (1958) (plurality opinion).
"Furthermore, these Eighth Amendment judgments should not be, or appear to be, merely
the subjective views of individual [judges]; judgment should be informed by objective
factors to the maximum possible extent." Coker v. Georgia, 433 U.S. at
592, 97 S.Ct. at 2866. This objective analysis is designed to prevent unwarranted
judicial interference with legislative prerogatives. As Justice Stewart stated in Gregg
[I]n assessing a punishment selected by a
democratically elected legislature against the constitutional measure, we presume its
validity. We may not require the legislature to select the least severe penalty
possible so long as the penalty selected is not cruelly inhumane or disproportionate to
the crime involved. And a heavy burden rests on those who would attack the judgment
of the representatives of the people.
This is true in part because the constitutional
test is intertwined with an assessment of contemporary standards and the legislative
judgment weighs heavily in ascertaining such standards. "[I]n a democratic
society legislatures, not courts, are constituted to respond to the will and consequently
the moral values of the people." . . . Caution is necessary lest this Court
become, "under the aegis of the Cruel and Unusual Punishment Clause, the ultimate
arbiter of the standards of criminal responsibility . . . throughout the country."
Gregg v. Georgia, 428 U.S. at 175-76, 96 S.Ct.
at 2926 (plurality opinion) (citations omitted).
 Judged by these standards, the
penalties for possession of marijuana do not violate the eighth amendment. Private
possession is not a major offense under the CSA; a first offense is only a
misdemeanor. The penalty of one year is not excessive compared to other possessory
federal crimes,46 and the penalty falls within the middle of various state penalties for
possession.47 In addition, judges are given discretion under the CSA to suspend a
sentence or to give a year's probation. These penalties cannot be deemed cruel and
V. Final Considerations
In this case, NORML has asked this court to
overturn the CSA prohibition on private possession of marijuana. In so doing, NORML
misdirects its efforts. This challenge presents the difficult social questions that
legislatures are especially adept at resolving, and we do not sit to second-guess their
judgments.48 Under our system of checks and balances, it is the court's duty to examine
legislation and to determine the legality or illegality of that legislation within the
confines of the law. It is the responsibility of the court "to construe and
enforce the Constitution and laws of the land as they are and not to legislate social
policy on the basis of . . . personal inclinations" or other nonlegal considerations.
Evans v. Abney, 396 U.S. 435, 447, 90 S.Ct. 628, 635, 24 L.Ed.2d 634 (1970). See
also New Orleans v. Duke, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511
(1976); Marshall v. United States, 414 U.S. 417, 427, 94 S.Ct. 700, 706, 38 L.Ed.2d
618 (1974). The legislative system may not always work efficiently, or fairly, but
we have staked our fortunes on it, and our history would support the wisdom of our
forefathers' judgment. As Justice Frankfurter once noted:
[T]here is not under our Constitution a judicial remedy
for every political mischief, for every undesirable exercise of legislative power. . . .
Appeal must be to an informed civically militant electorate. In a democratic
society like ours, relief must come through an aroused popular conscience that sears the
conscience of the people's representatives.
Baker v. Carr, 369 U.S. 186, 270, 82 S.Ct.
691, 739, 7 L.Ed.2d 663 (1962) (Frankfurter, J., dissenting).
NORML's efforts have seared the conscience of
many representatives. Eleven states have decriminalized possession of marijuana,49 and efforts
to decriminalize are continuing in many others. The legislative branch, and not the
judicial, is the proper battleground for the fight to decriminalize the possession of
marijuana. The people, and not the courts, must decide whether the battle will be
won or lost.