The distinctive feature of a total prohibition scheme is that all marihuana-related behavior is prohibited by law. Under the total prohibition response now in force in every state and at the federal level, cultivation, importation, sale, gift or other transfer, and possession are all prohibited acts. In 11 states and the District of Columbia, simply being present knowingly in a place where marihuana is present is also prohibited; and many states prohibit the possession of pipes or other smoking paraphernalia. For our purposes, the key feature of the total prohibition approach is that even possession of a small amount in the home for personal use is prohibited by criminal law.

From the very inception of marihuana control legislation, this nation has utilized a policy of a total prohibition, far more comprehensive than the restrictions established during the prohibition of alcohol.

Until recent years, society was operating under an eliminationist policy. The exaggerated beliefs about the drug's effects, social impact, and user population virtually dictated this legal approach. During this entire, period, total prohibition was sought through the use of heavier and heavier penalties until even first-time possession was a felony in every jurisdiction, and second possession offenses generally received a mandatory minimum sentence without parole or probation. Yet the last few years have seen society little by little abandoning the eliminationist policy in favor of a containment policy.

Under the total prohibition umbrella, this containment policy has been implemented by a unique patchwork of legislation, informal prosecutorial policy and judicial practice. Possession is now almost everywhere a misdemeanor. Although some term of incarceration remains as a penalty for possessors, it is generally not meted out to young first offenders or to possessors of small -amounts. Instead, most such offenders are dismissed or informally diverted to agencies outside the criminal system by those within the system who are trying to help them avoid the stigma of a criminal record.

Offenders who are processed within the criminal justice system generally receive fines and/or probation. In many jurisdictions, enforcement officials make little or no effort to enforce possession proscriptions, concentrating instead on major trafficking. Possessors are generally arrested only when they are indiscreet or when marihuana is found incident to questioning or apprehension resulting from some other violation. From our surveys, state and federal, we have found that only minimal effort is made to investigate marihuana possession cases.

Such a tendency is a reflection of the adoption of a containment policy. By acting only when marihuana appears above ground, enforcement officials are helping to keep its use underground. The shift away from the elimination policy has been matched by a similar shift in legal implementation, but the distinctive feature of the total prohibition scheme still remains: all marihuana-related behavior, including possession for personal use within the home, is prohibited by criminal law.

Is such a response an appropriate technique for achieving the social control policy we outlined above? The key question for our purposes is whether total criminal prohibition is the most suitable or effective way to discourage use and whether it facilitates or inhibits a concentration on the reduction and treatment of irresponsible use. We are convinced that total prohibition frustrates both of these objectives for the following reasons.

1. Application of the Criminal Law to Private Possession Is Philosophically Inappropriate

With possession and use of marihuana, we are dealing with a form of behavior which occurs generally in private where a person possesses the drug for his own use. The social impact of this conduct is indirect, arising primarily in cases of heavy or otherwise irresponsible use and
from the drugs symbolic aspects. We do not take the absolutist position that society is philosophically forbidden from criminalizing any kind of "private" behavior. The phrase "victimless crimes," like "public, health hazard, has become a rhetorical excuse for avoiding basic social policy issues. We have chosen a discouragement policy on the basis of our evaluation of the actual and potential individual and social impact of marihuana use. Only now that we have done so can we accord appropriate weight to the nation's philosophical preference for individual privacy.

On the basis of this evaluation we believe that the criminal law is too harsh a tool to apply to personal possession even in the effort to discourage use. It implies an overwhelming indictment of the behavior which we believe is not appropriate. The actual and potential harm of use of the drug is not great enough to justify intrusion by the criminal law into private behavior, a step which our society takes only 'with the greatest reluctance.

2. Application of the Criminal Law Is Constitutionally Suspect

The preference for individual privacy reflected in the debate over the philosophical limitations on the criminal law is also manifested in our constitutional jurisprudence. Although no court, to our knowledge, has held that government may not prohibit private possession of marihuana, two overlapping constitutional traditions do have important public policy implications in this area.

The first revolves around the concept that in a free society, the legislature may act only for public purposes. The "police powers" of the states extend only to the "public health, safety and morals." In the period of our history when the people most feared interference with their rights by the government, it was generally accepted that this broad power had an inherent limitation. For example, early prohibitions of alcohol possession were declared unconstitutional on the basis of reasoning such as that employed by the Supreme Court of Kentucky in 1915 in the case of Commonwealth v. Campbell:

It is not within the competency of government to invade the privacy of the citizen's life and to regulate his conduct in matters in which alone is concerned, or to prohibit him any liberty the exercise which will not directly injure society.

Noting that the defendant was "not charged with having the liquor in his possession for the purpose of selling it, or even giving it to another," and that "ownership and possession cannot be denied when that ownership and possession is not in itself injurious to the public," the Kentucky court concluded that:

The right to use liquor for one's own comfort, if they use it without injury to the public, is one of the citizen's natural and inalienable rights.... We hold that the police power-vague and wide and undefined as it is-has limits. . . .

Even the perceived dangers of opium were not enough to convince some members of the judiciary that the government could prohibit possession. It is historically instructive to consider these words, penned in 1890, by Judge Scott in Ah Lim v Territory:

I make no question but that the habit of smoking opium may be repulsive and degrading. That its effect would be to shatter the nerves and destroy the intellect; and that it may tend to the increase of the pauperism and crime. But there is a vast difference between the commission of a single act, and a confirmed habit. There is a distinction to be recognized between the use and abuse of any article or substance.... If this act must be held valid it is hard to conceive of any legislative action affecting the personal conduct, or privileges of the individual citizen, that must not be upheld.... The prohibited act cannot affect the public in any way except through the primary personal injury to the individual, if it occasions him any injury. It looks like a new and extreme step under our government in the field of legislation, if it really was passed for any of the purposes upon which that character of legislation can be sustained, if at all.

As a matter of constitutional history, a second tradition, the application of specific provisions in the Bill of Rights, has generally replaced the notion of "inherent" limitations. The ultimate effect is virtually the same, however. The Fourth Amendment's proscription of "unreasonable searches and seizures" reflects a constitutional commitment to the value of individual privacy. The importance of the Fourth Amendment to the entire, constitutional scheme was eloquently described by Justice Brandeis in 1928 in the case of Olmstead v U.S.:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and his intellect. They knew that only a part of the pain, pleasure and satisfaction of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.

Although the Fourth Amendment is itself a procedural protection, the value of privacy which it crystallizes is often read in conjunction with other important values to set substantive limits on legislative power. The Supreme Court, in the case of Griswold vs. Connecticut, held in 1965 that Connecticut could not constitutionally prohibit the use of birth control devices by married persons. Although the Justices did not agree completely on the reasons for their decision, Justice Douglas stated in the opinion of the Court:

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means of having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedom." (citation omitted) Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.

Four years later, the Supreme Court, in Stanley v. Georgia, held that even though obscenity is not "speech" protected by the First Amendment, a state cannot constitutionally make private possession of obscene material a crime. The Court's reasoning is revealed in the following language:

[The] right to receive information and ideas, regardless of their social worth, (citation omitted), 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 ...

While the judiciary is the governmental institution most directly concerned with the protection of individual liberties, all policy-makers have a responsibility to consider our constitutional heritage when framing public policy. Regardless of whether or not the courts would overturn a prohibition of possession of marihuana for personal use in the home, we are necessarily influenced by the high place traditionally occupied by the value of privacy in our constitutional scheme.

Accordingly, we believe that government must show a compelling reason to justify invasion of the home in order to prevent personal use of marihuana. We find little in marihuana's effects or in its social impact to support such a determination. Legislators enacting Prohibition did not find such a compelling reason 40 years ago; and we do not find the situation any more compelling for marihuana today.

3. Total Prohibition Is Functionally Inappropriate

Apart from the philosophical and constitutional constraints outlined above, a total prohibition scheme carries with it significant institutional costs. Yet it contributes very little to the achievement of our social policy. In some ways it actually inhibits the success of that policy.

The primary goals of a prudent marihuana social control policy include preventing irresponsible use of the drug, attending to the consequences of such use, and deemphasizing use in general. Yet an absolute prohibition of possession and use inhibits the ability of other institutions to contribute actively to these objectives. For example, the possibility of criminal prosecution deters users who are experiencing medical problems from seeking assistance for fear of bring attention to themselves. In addition, the illegality of possession and use creates difficulties in achieving an open, honest educational program, both in the schools and in the home.

In terms of the social policy objective of discouraging use of the drug, the legal system can assist that objective in three ways: first, by deterring people from use; second, by symbolizing social opposition to use; and finally, by cutting off supply of the drug.

The present illegal status of possession has not discouraged an estimated 24 million people from trying marihuana or an estimated eight million from continuing to use it. Our survey of the country's state prosecuting attorneys shows that 53% of them do not believe that the law has more than a minimal deterrent effect in this regard. Moreover, if the present trend toward passive enforcement of the marihuana law continues, the law ultimately will deter only indiscreet use, a result achieved as well by a partial prohibition scheme and with a great deal more honesty and fairness.

A major attraction of the law has been its symbolic value. Yet, society can symbolize its desire to discourage marihuana use in many other, less restrictive ways. The warning labels on cigarette packages serve this purpose, illustrating that even a regulatory scheme could serve a discouragement policy. During Prohibition, the chosen statutory implementation symbolized society's opposition to the use of intoxicating beverages; yet, most jurisdictions did not think it necessary to superimpose a proscription of possession for personal use in the home.

Finally, prohibiting possession for personal use has no substantive relation to interdicting supply. A possession penalty may make enforcement of proscriptions against sale a little easier, but we believe this benefit is of minimal importance in light of its costs.

The law enforcement goal repeatedly stated at both the federal and state levels has been the elimination of supply and the interdiction of trafficking. These avowed aims of law enforcement make sense, since they are the most profitable means of employing its manpower and resources in this area.

Indeed, the time consumed in arresting Possessors is inefficiently used when contrasted with the same amount of time invested in apprehending major dealers. Although a credible effort to eliminate supply requires prohibitions of importation, sale and possession-with intent-to-sell, the enforcement of a proscription of possession for personal use is minimally productive.

As noted, most law enforcement officials, district attorneys and judges recognize the ineffectiveness of the possession penalty. as a deterrent. Its perpetuation results in the making of what is commonly referred to as "cheap" cases that have little or no impact on deterring sale.

The marihuana supply system can be viewed as pyramid with the major bulk of marihuana entering the system at top of the pyramid and then descending to the base which represents the user population. Common sense dictates where law enforcement should devote its efforts. To remove the profit from the traffic requires arresting sellers, not users. The oft-heard argument that the police need possession penalties to compel users to reveal their sources is not convincing. "Turning informants" at the base of the pyramid is of marginal value and limited utility in reaching upwards toward the apex. Further, the National Survey showed that 60% of the users don't "buy" marihuana but get it from a friend. The volume of traffic in the drug at these levels is at best minimal.

In short, personal possession arrests and even casual sales, which account for more than 95% of the marihuana arrests at the state local level, occur too low in the chain of distribution to diminish supply very effectively.

In addition to the misallocation of enforcement resources, another consequence of prohibition against possession for personal use is the social cost of criminalizing large numbers of users. Our empirical study of enforcement of state and federal marihuana laws indicates that almost all of those arrested are between the ages of 18 and 25, most have jobs or are in school, and most have had no prior contact -with the criminal justice system. The high social cost of stigmatizing such persons as criminals is now generally acknowledged by the public at large as well as by those in the criminal justice system.

According to the National Survey, 53% of the public was unwilling to give young users a criminal record and 87% objected to putting them in jail. The nation's judges expressed an overwhelming disinclination to sentence and convict users for marihuana possession. Of these judges only 13% thought it was appropriate to incarcerate ail adult for possession and only 4% would jail a juvenile for marihuana possession. This disinclination is reflected in the low percentage of arrested users who are convicted, and the even lower percentage who are jailed.

Even among the nation's prosecutors, a substantial majority favor the present trend toward avoiding incarceration for first offenders. Most jurisdictions have devised informal procedures for disposing of cases in lieu of prosecution. Our empirical study shows that 48% of the adult cases, and 70% of the juvenile cases, were dropped from the system at some point between arrest and conviction. The picture displayed is one of a large expenditure of police manpower to enforce a law most participants further along the line are not anxious to apply.

Other disturbing consequences of laws proscribing possession for personal use are the techniques required to enforce them. Possession of marihuana is generally a private behavior; in order to find it, the police many times must operate on the edge of constitutional limitations. Arrests without probable cause, illegal searches and selective enforcement occur often enough to arouse concern about the integrity of the criminal process.

Yet another consequence of marihuana possession laws is the clogging of judicial calendars. President Nixon has noted that one of the major impediments to our nation's efforts to combat serious crimes is the fact that the judicial machinery moves so slowly. Swift -arrests, prosecution, trial and sentence would significantly improve the deterrent effect of law. Yet the judicial system is overloaded with petty cases, with public drunkenness accounting for about 50% of all non-traffic offenses.

In his March 1971 address to the National Conference on the Judiciary, President Nixon said:

What can be done to break the logjam of justice today, to ensure the right to a speedy trial-and to enhance respect for law? We have to find ways to clear the courts of the endless stream of "victimless crimes" that get in the way of serious consideration of serious crimes. There are more important matters for highly skilled judges and prosecutors than minor traffic offenses, loitering and drunkenness.

To this list we would add marihuana possession, which accounts for a rising percentage, of judicial caseloads. In Chicago alone, during the last half of 1970, there were more than 4,000 possession arrests.

A final cost of the possession laws is the disrespect which the laws and their enforcement engender in the young. Our youth cannot understand why society chooses to criminalize behavior with so little visible ill-effect or adverse social impact, particularly when so many members of the law enforcement community also question the same laws. These young people have jumped the fence and found no cliff. And the disrespect for the possession laws fosters a disrespect for all law and the system in general.

On top of all this is the distinct impression among the youth that police may use the marihuana laws to arrest people they don't like for other reasons, whether it be their politics, their hair style or their ethnic background. Whether or not such selectivity actually exists, it is perceived to exist.

For all these reasons, we believe that the possession offense is of little functional benefit to the discouragement policy and carries heavy social costs, not the least of which is disrespect and cynicism among some of the young. Accordingly, even under our policy of discouraging marihuana use, the better method is persuasion rather than prosecution. Additionally, with the sale and use of more hazardous drugs on the increase, and crimes of violence escalating, we do not believe that the criminal justice system can afford the time and the costs of implementing the marihuana possession laws. Since these laws are not mandatory in terms of achieving the discouragement policy, law enforcement should be allowed to do the job it is best able to do: handling supply and distribution.

A criminal fine or similar penalty for possession has been suggested as a means of alleviating some of the more glaring costs of a total prohibitory approach yet still retaining the symbolic disapproval of the criminal law. However, most of the objections raised above would still pertain: the possibilities of invasion of personal privacy and selective enforcement of the law would continue; possessors would still be stigmatized as criminals, incurring the economic and social consequences of involvement with the criminal law; the symbolic status of marihuana smoking as an anti-establishment act would be perpetuated.

On the other hand, a fine most likely would deter use no more than does the present possibility of incarceration. It would continue to impede treatment for heavy and very heavy use and would persist in directing law enforcement away from the policy's essential aim which is to halt illegal traffic in the drug.

For all these reasons, we reject the total prohibition approach and its variations.