31% of the prosecutors state that they would not prosecute anyone one arrested at a private, social gathering of marihuana users who are passing a cigarette.

Large numbers of prosecutors admit that they consider factors other than strength of the evidence in deciding whether or not to prosecute a possession case; 41% cite age, 38% cite lack of prior record, 36% consider the amount of marihuana seized and 26% take into account the family situation of the accused; 31% thought one or another of these non-legal factors was most important in his decision

29% of the prosecutors acknowledge that they use informal probation in lieu of prosecution in some cases.

As to the efficacy of existing law, a majority of the prosecutors agree that the marihuana laws do not deter, or deter only minimally:

Persons under 30 from initiating use (53%)

Users from using regularly (56%)

Users from transferring small amounts for little or no remuneration (55%)

From the studies made by the Commission of enforcement practices, we consider this to be a realistic assessment.

Conversely, however, the prosecutors agree that the laws have a significant effect in deterring users from smoking marihuana openly (62%) and persons over 30 from initiating use (44%).

We also asked the district attorneys for their views on an appropriate legal policy concerning marihuana use. Their opinions tend to fall in three groups. One group, representing about 25% of the prosecutors, favors the status quo, and does not want any further reduction in penalties. A fifth of the prosecutors conclude, on the basis of their experience, that possession of marihuana, and perhaps sale of the drug, should be removed entirely from the criminal justice system.

The remaining prosecutors, a majority, is willing to consider mitigation of the harshness of the law either by legislation or by benign exercise of discretion, but is reluctant to relinquish formal, criminal control. These prosecutors doubt the deterrent value of the law and are willing to be lenient in appropriate cases, but they believe some use of the legal system is necessary to prevent all increase in marihuana use.

Underlying these opinions are diverse attitudes about marihuana use and the efficacy of existing law. For example, prosecutors who doubt the efficacy of existing law and reject the "escalation" and "aggressive behavior" hypotheses, are generally willing to modify the laws by their enforcement policies and by legislative reform (Table 8).

The same general pattern of practice and opinion emerges at the judicial and dispositional level. Only 13% of the responding judges would jail an adult for possession of marihuana and only 4% said they would incarcerate a minor. Lesser proportions of probation officers and clinicians would imprison adults (8% and 1%) and minors (2% and %). Conversely, 11% of the Judges, 15.5% of the probation officers and 63.5% of the clinicians noted that they would assess no penalty for possession by adults. For minors, the proportions are 3%, 5%, and 35% respectively.

Table 8.-DISTRICT ATTORNEYS, OPINIONS

Percent who

Percent who Percent who believe the

believe believe marihuana Percent

Change favored marihuana marihuana laws do not who utilize

leads to leads to deter persons informal

hard drug aggressive under 30 probation

use behavior from initi-

ating use

None 87.1 47 51.3 28.5

Reduction of possession

penalties 68.8 35.1 63.2 34.3

Preclusion of incarceration. . 64.7 33 59 33.2

Decriminalization of

possession of small

amounts 41.5 21.9 67.2 37.4

Legalization of marihuana. .. 32.2 11.1 69 37.8

How to read table: 87.1%, of the prosecutors who favor no change in existing law believe that marihuana leads to the use of hard drugs; in contrast, 32.2% of the prosecutors who favor legalization believe that marihuana leads to the use of hard drugs.

With regard to appropriate legal policy, the judges exhibit the same inclination as the prosecutors to look for alternatives within a formal control system which would avoid the use of criminal penalties. We asked essentially the same question in two ways and received similar responses (Table 9).

The judges, as a group, are less enthusiastic about criminal control than the prosecutors, but are equally unwilling to relinquish formal control. By contrast, the probation officers and clinicians, who have more personal contact with these offenders and are perhaps more intensively aware of the control potential of the criminal justice systern, are highly skeptical about formal control (Tables 10, -and 11).

In conclusion, as one proceeds through the criminal justice system, from district attorneys to court clinicians, the people responsible for the functioning of that system seem to be decreasingly enthusiastic about the appropriateness of criminal control and decreasingly insistent on any technique for formal control.

Table 9.*-JUDGES, OPINIONS

Types of Means of control Percent Statutory schemes Percent

control for adult users who for possession who

favored favored

Informal Personal choice 11 Control outside 24.3

control Informal social 22 criminal justice

control system

Non-criminal Required treatment 21 Expungement of 57.9

formal Other 11 criminal record

control

Criminal Criminal law 25 Control within 11.5

control criminal justice

system

'Because of a small percentage of non-responses, figures do not always total 100%.

How to read table: When asked to identify the appropriate means of control for adult users, 33% of the judges opted for informal control (1 1% would rely on personal choice and 22%, would rely on informal social control). Similarly, when asked about the appropriate statutory scheme for possession, 24.3% of the judges preferred control outside the criminal justice system, a functional equivalent of "informal control."

Table 10.*-PROBATION OFFICERS' OPINIONS

Types of Means of control Percent Statutory schemes Percent

control for adult users who for possession who

favored favored

Informal Personal choice 21 Control outside 35.5

control Informal social 32.7 criminal justice

control system

Non-criminal Required treatment 11.8 Expungement of 54.5

formal Other 10 criminal record

control

Criminal Criminal law 15.5 Control within 9

control criminal justice

system

*Because of a small number of non-responses, the figures do not always total 100%.

To supplement our survey of behavior and opinion within the criminal justice system, we also solicited the views of the American Bar Association. The President of the A13A in turn urged the respective Committees of the Association to submit their views to us. The two Committees directly concerned with the drug area, the Committee on Alcoholism and Drug Reform of the Section oNn Individual Rights

Table ll.*-CLINICIANS, OPINIONS

Types of Means of control Percent Statutory schemes Percent

control for adult users who for possession who

favored favored

Informal Personal choice 61.7 Control outside 74

control Informal social 21 criminal justice

control system

Non-criminal Required treatment 1 Expungement of 22.6

formal Other 10 criminal record

control

Criminal Criminal law 3.5 Control within 0

control criminal justice

system

'Because of a small number of non-responses, the figures do not always total 100%.

and Responsibilities, and the Committee on Drug Abuse of the Section on Criminal Law, were in essential agreement regarding the appropriate course of action.

Both Committees expressed doubt about the wisdom and legitimacy of existing policy and about the, capacity of the criminal justice system to deal with marihuana use. They both urged the Commission to recommend the removal of criminal penalties from possession of the drug for personal use and casual non-profit transfers. Both Committees suggested that a regulatory approach to distribution of the drug be given serious consideration.