An Analysis of Marijuana Policy

National Research Council of the National Academy of Science, 1982

THE USE OF MARIJUANA: COMPARING COMPLETE AND PARTIAL PROHIBITION

To compare the two types of marijuana control policies presently used in the United States--prohibition of supply and use and prohibition of supply only--we need to consider only the one particular in which they differ:

the application of criminal sanctions against marijuana users. To compare the effects of the two policies, we can examine the effects of the prohibition of use and determine whether prohibition results in more costs than benefits or vice versa.

In recent years the prohibition of marijuana use has come under increasing criticism. Many students of the U.S. marijuana situation, including the National Commission on Marijuana and Drug Abuse, members of Congress, political analysts, and legal experts, have suggested that existing laws prohibiting marijuana use be repealed. These suggestions have been prompted by the failure of current policies to deter large numbers of users, the consequent criminalization of large numbers of young Americans, and the high social costs of such law enforcement. A number of professional associations and agencies have also gone on record in support of the removal of all criminal penalties for the private possession and use of marijuana as a means of reducing the economic costs of law enforcement and the social costs of arrest or imprisonment (criminalization) of young people who are otherwise not criminally involved or labeled. The organizations and agencies that have expressed this view include the American Medical Association, the American Bar Association, the American Public Health Association, the Canadian Commission of Inquiry into the Non-Medical Use of Drugs, the National Council of Churches, the National Advisory Commission on Criminal Justice Standards and Goals, the National Commission on Marijuana and Drug Abuse, among others. Eleven states, with one-third of the nation1s population, have adopted some version of partial prohibition or 'decriminalization." (In Oregon, Alaska, Maine, Colorado, California, Ohio, Minnesota, Mississippi, New York, North Carolina, and Nebraska, citations and small fines have replaced arrests and incarceration for use-only marijuana-related offenses.)

At first glance, criminalizing the selling of marijuana might appear inconsistent with failing to punish its purchase. But in the drafting of laws, a line is often drawn between legal and illegal conduct so that the maximum reduction in the proscribed behavior can be gained at minimum social cost. Frequently it turns out that laws aimed solely at suppressing sales are more cost-effective in reducing both the possession and use of a substance than are laws that attempt to suppress possession directly. There are several reasons for this. First, there are fever sellers than buyers; this permits a concentration of law enforcement efforts where they do the most good. Second, juries are likely to be more sympathetic to a "mere" user, who may be ill-advised, than to a dealer making a profit from the weaknesses of other.. Offenses treated under the vice model (partial prohibition) range from gambling--the person who takes illegal bets is guilty of a crime while the person who places them is not--to the offense of selling new automobiles not equipped with seat belts--the seller, not the buyer, is guilty of an offense. Even Prohibition in 1919 never criminalized the possession or use of alcohol, only its manufacture and sale.

Effects of Partial Prohibition

Probably the most important fact about a policy of prohibition of supply only is that where it has been adopted it has apparently not led to appreciably higher levels of marijuana use than would have existed if use were also prohibited. The National Commission on Marijuana and Drug Abuse's speculations about the lack of change in use patterns resulting from repeal of prohibitions on use have been confirmed by data since 1972. Reports from California, Oregon, and Maine indicate no appreciable increase in use following decriminalization of use, at least in the short term.

Oregon, the first state to repeal prohibition of use (in October 1973) has been studied in a series of Drug Abuse Council surveys (National Governors' Conference, 1977). Surveys in 1974 and 1975 showed no major increase following decriminalization. While the percentage of adults who were current users had increased by January 1977 (from 20 to 24 percent), use had increased similarly nationwide in the same period, suggesting that the causes for the adult increase in Oregon were the same as those for increases in the rest of the country rather than the result of changes in the law. Indeed, the percentage of adult ever-users in Oregon in 1976 (24 percent) was lower than the average percentage of adult ever-users in the western United States (28 percent) in 1975-1976, although higher than the national average (21.3 percent). (It should be noted that aggregate use rates in the western United States are heavily weighted by use rates in California, the largest western state, which had relatively high rates even prior to the state repeal of prohibition of use.) That the increase in use in Oregon from 1973 to 1976 was probably not due to the new law is suggested by other survey data. Only a small proportion of non-users said fear of legal prosecution was a reason for nonuse in 1974, 1975, and 1976 (National Governors' Conference, 1977). On the question of the fear of health dangers) Drug Abuse Council survey data show that such fear decreased significantly over those years but has increased since 1976.

The state of Maine, which repealed criminal penalties for marijuana use in May 1976, surveyed the effects of legislation in July and August 1978 (State of Maine Department of Human Services, 1979). Its study concluded that the change from criminal to civil penalties has not caused a large increase in marijuana use: less than 1 percent of all adults and 3.1 percent of all high school students reported any increase in their use as a result of the new law; 3.5 percent of adult regular users and 7 percent of high school regular users reported any increase in their use directly attributable to the change in the law. There is also preliminary evidence, based on a nationwide study of high school students between 1975 and 1979, that "any increase in marijuana use in the decriminalized states, taken as a group, was equal to or less than the increases being observed in the rest of the country where decriminalization was not taking place" (Johnston, 1980:5). It could be argued that because de facto repeal of prohibition of use has been taking place throughout the country, one should not expect to see larger increases in use in states that legally decriminalize than in others. Even if this is true, however, the important point is that the legal change to decriminalization does not, in itself, appear to lead to increases in use.

This lack of change is not particularly surprising. The statistical chance that any person would be apprehended for his or her use i8, in fact, extremely low throughout the United States (though, as we note below, the large number of users is sufficient to generate a substantial volume of arrests in states that do prohibit use). As a result, it is hard to imagine that the deterrent effect of prohibition laws on any given user would be very great.

It has been suggested that repeal of government prohibitions might change attitudes related to health or morals, perhaps symbolizing that health officials certify marijuana use to be safe. The absence of large increases in marijuana use in repeal states, however, indicates that either the change in policy has not had such a symbolic effect, or that, if it has, its causal significance is not appreciable--though it must be acknowledged that changes of this type might take generations to occur.

Costs of Prohibition of Use

The costs of policies directed at the user are not negligible, although actual savings in law enforcement costs attributable to repeal of prohibition of use per se are difficult to estimate. The difficulty arises in part because marijuana arrests have decreased nationally in recent years, reflecting the overall tendency to relax enforcement of marijuana laws, and that change could lead to inaccurate estimates of the impact of repeal. Nevertheless, reduced law enforcement activities seem to have led to substantial savings in states that have repealed laws that prohibit use.

California made a careful study of the economic impact of its law repealing prohibition of use, which went into effect in January 1976 (State Office of Narcotics and Drug Abuse, 1977). The law reduced the penalty for personal possession of one ounce or less of marijuana from a possible felony to a citable misdemeanor, punishable as an infraction with a maximum fine of $100 without regard to prior possession offenses. Criminal custody, booking, and pretrial incarceration procedures were eliminated. Possession of more than one ounce was also made a misdemeanor, with a maximum fine of $500, six months in jail, or both. According to the study, these changes resulted in a 74 percent reduction in what the state had been spending yearly to enforce its marijuana laws. (Estimates of what the state had been spending ranged from $35 million to more than $100 million yearly; see National Governors' Conference, 1977.)
In addition to its economic benefits, repealing prohibition of use saves the social costs of criminalizing the marijuana user. In recent years, close to 400,000 people have been arrested each year for marijuana-related offenses despite the general nonenforcement of criminal sanctions for use (Federal Bureau of Investigation, 1980). Only a small fraction of the arrests are made under federal law, largely for importation of marijuana. About 85 percent of all marijuana-related arrests are for possession, usually of one ounce or less (see, e.g., State Office of Narcotics and Drug Abuse, 1977).

A study by the National Commission on Marijuana and Drug Abuse of a sample consisting of some 3,000 of the people arrested for marijuana-related offenses in 1970 indicated that the marijuana arrest was usually the arrestee's first experience with the criminal justice system, particularly among juveniles (National Commission on Marijuana and Drug Abuse, 1972). Yet, "it is standard practice for law enforcement agencies to report such offenses to prospective employers, licensing agencies, and other authorities as 'narcotic drug arrests'" (testimony of Jay Miller, American Civil Liberties Union to the Select Committee on Narcotics Abuse and Control, 1977). Thus young users, who are often otherwise law-abiding people, are subject to an arrest record, or even a prison term, with implications extending into many aspects of their lives.

Alienation from the rule of law in democratic society may be the most serious cost of current marijuana laws. The National Commission on Marijuana and Drug Abuse was concerned that young people who see no rational basis for the legal distinction between alcohol and marijuana may become cynical about America's political institutions and democratic process. The American Bar Association report (printed in Select Committee on Narcotics and Drug Abuse, 1977) concurs in the view that marijuana laws that criminalize the millions of Americans who have used marijuana engender disrespect for the law.

Public Attitudes Toward Partial Prohibition

Although the National Commission on Marijuana and Drug Abuse concluded that prohibition of supply only would be a better policy than prohibition of supply and use, it felt that a serious disadvantage of such a course would be the upset and moral outrage 8uch a policy would engender. Hindsight now shows that the Commission was mistaken in predicting a strong uniform public reaction to the adoption of partial prohibition policies. Experience since 1973 has shown that repeal of criminal penalties for use of marijuana has not been accompanied by massive public protest in the states in which it occurred and, in fact, has had the approval of the majority of citizens in those states (National Governors' Conference, 1977).

Nationally, attitude trends are consistent with the experience of the repeal states. Roffman (1978) reports that public opinion surveys indicate a slowly increasing preference for a reduction in penalties for marijuana offenses; a 1975 national survey (National Institute on Drug Abuse, 1975-1976) found that 52 percent of American adults favored only a fine or probation for small marijuana offenses; and a 1977 Gallup poll showed that 28 percent of the public favored legalization, compared with 12 percent in 1969.