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Marijuana Prohibition in the United States: History and Analysis of a Failed Policy
JAMES
B.
SLAUGHTER*
I.
INTRODUCTION
Over half a century of marijuana' prohibition in the United States has failed to control the use of the drug, and the government's accelerating pursuit of prohibition now exacts a price far exceeding the harm of this mild intoxicant. The present impasse began in the 1960s, when marijuana smoking expanded rapidly and forced reexaminations of legal and medical assumptions about the drug. Federal and state governments reduced penalties for possession of small amounts of cannabis as the number of annual arrests for marijuana topped 100,000 in the late 1960s. Cannabis use developed into a widespread social practice in the 1970s before regular consumption of the drug declined to less than ten percent of the population in the mid-1980s. Two National Academy of Sciences studies challenged exaggerated allegations of marijuana's harm and criticized cannabis prohibition for the social costs of unregulated black markets, aggrandizement of police powers, and criminalization of millions of citizens. Resurgent public concern over children, cocaine, and cannabis in the late 1970s and 1980s nevertheless blocked further relaxation of marijuana laws. Federal and state governments vigorously attacked production and distribution of cannabis, but rapid changes in the marijuana industry frustrated efforts to reduce its availability. The United States redoubled its commitment to prohibition in the mid-1980s, and many companies began analyzing the urine of
* Articles Editor, Colum. J.L. & Soc. Probs., 1986-87. 1. Cannabis is the preferred term for the marijuana plant and its psychoactive products, marijuana and hashish, and thus cannabis is often used interchangeably with marijuana and will be in this Article. The genus cannabis consists of three species, cannabis sativa, cannabis indica and cannabis ruderalis. L. Grinspoon, Marihuana Reconsidered 375 (2d ed. 1977). Marijuana is sometimes cooked in food and eaten, but the usual method of ingestion is smoking, and that term will encompass both methods of consumption in this article. The controversy over the drug extends to its spelling, a matter that has confused even the Supreme Court. The consensus now seems to rest on marijuana with a "j." Mauro, Has High Court's Spelling Gone to Pot?, Nat'l L. J., Apr. 14, 1986, at 3.
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employees to detect and deter illicit drug use. Widely accepted rhetoric about the necessity of cannabis prohibition masks the fact that marijuana smoking's few deleterious effects on society can be better controlled if the drug is legalized. Regulated, legal cannabis will dissolve a destructive black market and encourage the moderation already shown by the vast majority of marijuana smokers. This Article begins in Part II with a review of the rise of controls over cannabis in the first half of the twentieth century as the drug appeared on the fringes of society. Part III comments on the upsurge of cannabis smoking in the 1960s and analyzes the first wave of penalty reductions enacted in response to the flouting of heavy criminal sanctions against marijuana possession. Part IV studies the second wave of decreases in marijuana penalties in the 1970s in the United States and the ramifications of this decriminalization process. Part V discusses recent medical and policy research on cannabis, particularly two National Academy of Sciences studies published in the early 1980s. The supplanting of marijuana law reform by worries over cocaine and cannabis in the late 1970s and 1980s and the resulting expansion of drug enforcement are detailed in Parts VI and VII. Parts VIII, IX and X examine the problematic efforts of the United States in the 1980s to suppress cannabis production abroad and at home, and the new emphasis on reducing demand for the drug by identifying and punishing marijuana users in the workforce through urine tests. The Article ends with a discussion of the Netherlands' successful policy of allowing the retail sale of cannabis and concludes that the toll of increasingly draconian prohibition outweighs the minimal harms of marijuana. II.
THE ORIGINS AND DEVELOPMENT OF MARIJUANA PROHIBITION
American marijuana laws in the early twentieth century evolved alongside issues of drug-using ethnic groups, worldwide opium control and the ascendance of federal regulatory power during the Progressive Era. Concerns over Chinese and opium, blacks and cocaine, Mexicans and marijuana and the rise of a federal drug enforcement bureaucracy helped usher in nationwide marijuana
prohibition by 1937.2
2. See R. Bonnie & C. Whitebread, The Marihuana Conviction: A History of Marihuana Prohibition in the United States 14, 32-40 (1974); D. Musto, The American Disease 4-8, 218-23 (1973).
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Racism helped spur marijuana prohibition in many states and localities in the early twentieth century.' The outbreak of the Mexican Revolution in 1910 sent waves of immigrants into the southern border regions of the United States, inspiring animosity at a time when white supremacy and nativism were ascendant in much of the nation. Marijuana smoking distinguished some of the Mexicans and provided a vehicle for police harassment of a scorned minority group.4 California prohibited marijuana possession without a doctor's prescription in 1915, and every state west of the Mississippi River enacted similar legislation in this period.' Marijuana in early twentieth century America continued to be identified with, and its use largely confined to, a small percentage of members of certain racial minorities and occupations. Mexicans, blacks and jazz musicians were labeled by the government and the media as the practitioners of the increasingly reviled habit of marijuana smoking. The leading charge against the drug was that it could provoke criminal insanity. Lurid tales of violent crimes committed by allegedly marijuana crazed criminals ran in the popular press of the 1920s and 1930s, filling the vacuum of knowledge about cannabis. The Federal Bureau of Narcotics, formed in 1930, urged state legislatures to pass the Uniform State Narcotics Act and to include marijuana in their lists of proscribed drugs. By 1936, eighteen states enacting the Uniform Narcotics Act included sanctions against marijuana possession.8 Federal marijuana prohibition began in 1937, when the Bureau of Narcotics convinced Congress to pass the Marijuana Tax Act, restricting possession of the drug to authorized medical and industrial users." After World War II, federal and state penalties for cannabis possession and distribution increased sharply. The Bureau of Narcotics, led by its crusading commissioner, Harry Anslinger, charged that marijuana use spurred the increase in heroin addiction witnessed after the war. This stepping-stone theory helped convince
3. 4. 5. 6. 7. 100-13. 8. 9. See D. Musto, supra note 2, 219-23 (1973). E. Abel, Marihuana: The First Twelve Thousand Years 200-05 (1980). See R. Bonnie & C. Whitebread, supra note 2, at 51. J. Kaplan, Marijuana: The New Prohibition 88-98 (1970). See E. Abel, supra note 4, at 237-47; R. Bonnie & C. Whitebread, supra note 2, at D. Musto, supra note 2, at 221-29. Id. at 225-29.
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legislatures to enact stiff mandatory prison terms for possession of any illegal drug. 10 In 1951, the federal Boggs Act mandated two-tofive years of imprisonment for first offense possession of any amount of marijuana."
III.
A.
MARIJUANA MEETS MIDDLE AMERICA
THE EXPLOSION IN CANNABIS SMOKING AND THE FIRST WAVE OF LAW REFORM
Beginning in the mid-1960s, marijuana spread beyond small circles of the avant-garde and minorities to become a pastime of millions of middle-class youth. 2 People adopted a previously littleknown drug into their lifestyles in flagrant violation of statutes decreeing imprisonment for cannabis possession. Marijuana's upsurge triggered a strong yet futile effort to contain the drug through law enforcement and forced the first debate over the merits of marijuana prohibition. Inexpensive Mexican marijuana inundated American campuses in the late 1960s and gained ready acceptance among the young during this period of social and political unrest.' 3 Fewer than a million Americans had sampled cannabis by 1965; by 1972, twenty-four million people had smoked marijuana at least once, eight million people were using it regularly, and at least half a million people were consuming it daily.' 4 Consumption more than doubled through the 1970s and quickly expanded out of the college-age group. 15 The number of annual arrests for all marijuana offenses in the United States by local, state and federal law enforcement officers
10. See J. Kaplan, supra note 6, at 234-35. 11. Boggs Act, ch. 666, 65 Stat. 767 (1951). The Narcotic Control Act of 1956 further stiffened criminal sanctions for marijuana offenses. Narcotic Control Act of 1956, ch. 629, 103, 70 Stat. 567, 568 (1956). Many state statutes were more severe - Alabama mandated five years imprisonment for first offense possession; Missouri allowed up to life imprisonment for second-offense possession. Inciardi, Crucial Variables in Marijuana Decriminalization Research, 10 Contemp. Drug Probs. 383 (1981). 12. Mandel & Feldman, The Social History of Teenage Drug Use, in Teen Drug Use 26-27 (G. Beschner & A. Friedman eds. 1986); R. Bonnie & C. Whitebread, supra note 2, at 223-24. 13. National Commission on Marijuana and Drug Abuse [hereinafter Shafer Commission], Marijuana: A Signal of Misunderstanding 6, 7 (Signet New American Library ed. 1972); see also W. Novak, High Culture 165-172 (1980) (cultural history of marijuana use in the 1960s). 14. Shafer Commission, supra note 13, at 7-8. 15. Institute of Medicine [hereinafter IOM], Marijuana and Health 36-38 (1982).
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soared from 20,000 in 1965 to 190,000 in 1970 and doubled again to 421,000 by 1973. The large majority of these arrests were for possession of small amounts of marijuana, usually less than one ounce. 6 Hundreds of thousands of citizens were arrested and convicted for felony marijuana possession, and many of them served prison terms.' 7 Public sentiment mounted against jailing marijuana
smokers. '
State legislatures rapidly scaled back the harsh felony possession statutes that had been enacted after World War II, when the people arrested for marijuana offenses were primarily minorities or from lower socio-economic groups. Between 1969 and 1972, almost every state substantially reduced penalties for marijuana possession. 9 Congress responded to the proliferation of marijuana, psychedelics and other illicit drugs in the late 1960s by overhauling the federal laws in 1970. The Comprehensive Drug Abuse and Control Act distinguished marijuana from other drugs and lowered the maximum penalty for possession of an ounce of marijuana to one year in jail and a $5,000 fine, with the option of probation or a conditional discharge at the judge's discretion." The new federal
16. Federal Bureau of Investigation, Uniform Crime Reports (1965-1973), cited in Josephson, Marijuana Decriminalization: The Processes and Prospects of Change, 10 Contemp. Drug Probs. 291, 294 (1981). 17. H. Packer, The Limits of the Criminal Sanction 338 (1968). 18. See R. Bonnie & C. Whitebread, supra note 2, at 238-40; Shafer Commission, supra note 13, at 132-156; J. Himmelstein, The Strange Career of Marihuana 91, 98-99 (1983). Criticism of imprisoning marijuana smokers began in the early 1960s. President Kennedy's Advisory Commission on Narcotic and Drug Abuse recommended in 1963 that mandatory minimum sentences for marijuana offenses be repealed since marijuana was less harmful than heroin. The President's Advisory Commission on Narcotic and Drug Abuse, Final Report 42 (1963). A pioneering study of drug law issues, The Addict and the Law, endorsed the Advisory Commission's recommendation and pointed out the absence of a sound public health rationale for marijuana policy. A. Lindesmith, The Addict and the Law 222-42 (1965). During the Johnson Administration, a Presidential panel concluded that "enough information exists to warrant careful study of our present marihuana laws and the propositions on which they are based." President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 225 (1967). See also H. Packer, supra note 17, at 337-41 (increase in marijuana use in the 1960s demonstrates the ineffectiveness of the criminal sanction to control consensual behavior). 19. See R. Bonnie & C. Whitebread, supra note 2, at 240, 278. By the end of 1972, forty-two states classified possession of less than an ounce of marijuana as a misdemeanor. Id. 20. Comprehensive Drug Abuse and Control Act of 1970, Pub. L. No. 91-513, 404, 84 Stat. 1236, 1262-64 (1970) (codified as amended at 21 U.S.C. 844 (1982, Supp. 11 1984,
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law reflected and strengthened the trend away from stigmatic prison sentences for possession of small amounts marijuana.21 B.
THE SHAFER COMMISSION: SETTING THE STAGE FOR DECRIMINALIZATION
The hundreds of thousands of marijuana smokers arrested each year in the early 1970s still faced potential suspended sentences, probation fines and life-long records of misdemeanor convictions. To address these issues and other aspects of marijuana in America, Congress in 1970 directed the formation of the National Commission on Marihuana and Drug Abuse, whose members were appointed by President Nixon. Its 1972 report, Marihuana:A Signal of Misunderstanding,refuted the prevailing myths supporting prohibition and encouraged state legislatures to reduce sanc22 tions for possession of cannabis. Chaired by former Pennsylvania Governor Raymond Shafer, the National Commission, known as the "Shafer Commission," recommended that federal and state laws be amended to legalize possession of small amounts of marijuana in private and provide for confiscation of marijuana found on a person in public.2" Prohibition of production and distribution for profit would continue to express society's disapproval of marijuana use.2" The Shafer Commission rejected a regulatory scheme for legal marijuana that would "institutionalize availability of a drug which has uncertain longterm effects and which may be of transient social interest."25 Surveying cannabis scholarship, the Commission concluded that "its use at the present level does not constitute a major threat to public health. 2 16 The report found "little proven danger of
Supp. I1 1985 & Supp. IV 1986)). Under a conditional discharge, if a defendant commits no further offenses for a probationary period the charges are dropped and the arrest record expunged. Id. 21. R. Bonnie, Marijuana Use and Criminal Sanctions 1-2 (1980). 22. P. Anderson, High in America 91-95 (1981); Himmelstein, The Continuing Career of Marijuana: Backlash . . . Within Limits, 13 Contemp. Drug Probs. 1, 6-7 (1986). The Shafer Commission was not the first official body to exonerate marijuana. The Indian Hemp Drug Commission interviewed over one thousand witnesses concerning cannabis in India in 1893-94 before concluding that moderate use of the drug caused no appreciable injury. E. Abel, supra note 4, at 126-32. The Marijuana Papers (D. Solomon ed. 1966) is a useful anthology of early scientific, sociological and literary writing on cannabis. 23. Shafer Commission, supra note 13, at 190-202. 24. Id. at 202-03, 184-86, 189. 25. Id. at 189. 26. Id. at 112.
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physical or psychological harm from the experimental or intermittent use of the natural preparations of cannabis. . . . The risk of harm lies instead in the heavy, long-term use of the drug, particularly of the most potent preparations."2" Through much of its discussion of the public health ramifications of cannabis, the Shafer Commission limited its concern to heavy users, those smoking several times daily over a long period of time, a group constituting two to four percent of all those who had ever tried the drug.28 A Signal of Misunderstandingundermined some of the pillars of marijuana prohibition. The study dismissed the theory that marijuana use caused violent crime and juvenile delinquency.2 9 The stepping-stone concept that marijuana smokers progressed to more dangerous drugs also came under attack. "Marihuana per se does not dictate whether other drugs will be used," the Shafer Commission wrote.30 Rather, "[t]he personality profile of the heavy user discussed earlier includes elements propelling him toward heavy involvement in the multiple-drug-using subculture.""1 The comprehensive, multi-volume Shafer Commission report spurred useful debate on cannabis policy and constituted a landmark of marijuana research synthesis. The work stressed that cannabis must be viewed from a broad sociological perspective that considers the costs of prohibition in addition to public health concerns.32 A Signal of Misunderstanding successfully defused the misconceptions of marijuana's extreme danger that had guided cannabis policy until the late 1960s.3 1 President Richard Nixon disagreed with the Shafer Commission's conclusion that cannabis possession should be decriminalized. "I oppose the legalization of marihuana," the President declared, "and that includes its sale, its possession, and its use. I do not believe you can have effective criminal justice based on a philosophy that something is half legal and half illegal."3 4 Congress and most states followed the President's advice and did not decriminalize marijuana, but the Commission's recommendations
27. 28. 29. 30. 31. 32. 33. 34. Id. at 80-81. Id. at 109, 41-42, 45-48, 112-13. Id. at 85-96. Id. at 110. Id. at 56. Id. at 27, 174-84. Id. at 85-113. The President's News Conference of March 24, 1972, 1972 Pub. Papers 495 (1974).
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helped set in motion another round of limited cannabis law reform in the 1970s.' 5 IV.
THE SECOND WAVE OF REFORM: DECRIMINALIZATION IN THE
1970s Cannabis in America in the 1970s changed from a youth phenomenon into the thirdmost popular drug after alcohol and tobacco. 6 By 1979, 68% of adults age eighteen to twenty-five had tried marijuana and 35% of them had smoked within the past month. Over fifty million people had tried marijuana by 1980 and approximately thirty million citizens had smoked within the past month, roughly one out of every eight citizens. Cannabis use spread to all regions, making inroads among disparate demographic groups far removed from middle-class college students. 7 The number of annual arrests for marijuana offenses reflected this surge in use, reaching 446,000 in 1974 and remaining above 400,000
into the mid 1980s.88
The transformation of marijuana smoking from an exotic outlaw indulgence to a commonplace occurrence at gatherings of young people helped prompt legislatures and the criminal justice system to reexamine their approach to the drug. Between 1973 and 1978, eleven states, encompassing one-third of the nation's population, moved beyond the penalty reductions of the late 1960s and decriminalized possession of small amounts of marijuana. States as disparate as California and Mississippi replaced optional prison sentences for first-offense marijuana possession with civil citations
35. In a thorough follow-up report to A Signal of Misunderstanding discussing drugs other than marijuana, the Shafer Commission commented that "it is painfully clear from the debate over our recommendations [in A Signal of Misunderstanding] that the absence of a criminal penalty for private use is presently equated in too many minds with approval, regardless of a continued prohibition on availability. The Commission regrets that marihuana's symbolism remains so powerful, obstructing the emergence of a rational policy." Shafer Commission, Drug Use in America: Problem in Perspective 224 (1973). 36. J. Fort, The Addicted Society: Pleasure-Seeking and Punishment Revisited 81-85 (1981). 37. IOM, supra note 15, at 35-40. See also W. Novak, supra note 13, at xv-xvi; J. Inciardi, The War on Drugs 35-36 (1986) (spread of marijuana use among professionals, businessmen and tradesmen). 38. 3 National Governors Conference, Marijuana: A Study of State Policies and Penalties, 27 (1977); J. Inciardi, supra note 37, at 212. Marijuana arrests dipped slightly below
400,000 in 1979, and the annual arrest rate fell below this figure in 1986 because of an upsurge in cocaine enforcement. See infra note 181.
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and small fines, similar to traffic tickets.3 9 On the federal level, President Ford assumed a non-committal stance on marijuana decriminalization, 4 0 and President Carter called for federal decriminalization in August of 1977." In 1973, Oregon became the first state to make marijuana possession a civil violation. Subsequently, Colorado, Alaska, Ohio, California, Maine, Minnesota, Mississippi, North Carolina, New York and Nebraska abolished optional prison terms for first-offense possession of small amounts of marijuana.'2 In 1975, Alaska legalized marijuana for adult personal use in the home when the state's Supreme Court held that the Alaska Constitution's privacy clause protected marijuana possession in this limited instance. 8 State legislatures reformed marijuana laws in the 1970s amid relatively little controversy. Prominent national organizations like the American Bar Association, the National Council of Churches and the Governing Board of the American Medical Association issued calls for marijuana law reform." Marijuana decriminalization, while sometimes passing by slim margins, generally escaped public outcry. 45 The support of law enforcement officials often contributed to the success of decriminalization legislation. Stricter penalties for drug trafficking offenses accompanied many decriminalization measures and helped make them politically palatable. 6 Those states decriminalizing marijuana possession in the 1970s generally reported savings in police and judicial resources while
39. Bureau of Justice Statistics, U. S. Dep't of Justice, Sourcebook of Criminal Justice Statistics-1983 187 (E. Brown, T. Flanagan & M. McLeod eds. 1984). 40. P. Anderson, supra note 22, at 6, 210-11. President Ford's Drug Abuse Task Force endorsed "deemphasizing" marijuana possession "in light of the widespread recreational use [and] the relatively low social cost associated with this type of use." Domestic Council Drug Abuse Task Force, White Paper on Drug Abuse, 25 n.10 (1975). 41. P. Anderson, supra note 22, at 6, 210-11. Congress held hearings on marijuana decriminalization in 1975 and 1977. Marijuana Decriminalization: Hearing on S.1450 Before the Subcomm. to Investigate Juvenile Delinquency of the Senate Comm. on the Judiciary, 94th Cong., 1st Sess. (1975); Decriminalization of Marihuana: Hearings Before the Select Comm. on Narcotics of the House of Representatives, 95th Cong., 1st Sess. (1977). 42. Bureau of Justice Statistics, U. S. Dep't of Justice, Sourcebook of Criminal Justice Statistics-1985 133 (T. Flanagan & E. McGarrell eds. 1986). 43. Ravin v. State, 537 P.2d 494 (Alaska 1975). 44. Marijuana Decriminalization Hearing, supra note 41, at 2-3 (opening statement of Senator Bayh, listing national organizations and individuals endorsing Shafer Commission recommendations). 45. See 1 National Governors Conference, supra note 38, at 10. For a discussion of the political battle in several state legislatures, see P. Anderson, supra note 22, at 120-23, 15167. 46. Josephson, supra note 16, at 297-98.
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maintaining cannabis use rates close to the states retaining criminal sanctions. 7 Few residents of the decriminalized states were
moved to sample the drug or increase their use because of penalty

reductions."' The experience of the 1970s reinforced the lesson of the late 1960s - a commonplace social phenomenon like marijuana smoking bears little relation to the legal sanctions government attempts to impose.4 9 Alaska's experience since 1975 as the only state with limited legalization of marijuana shows the inconsequence of changing the
legal status of the drug. Alaskan adolescents show higher rates of

marijuana use than teenagers in some categories, and lower rates in
47. Committee on Substance Abuse and Habitual Behavior, The National Research Council, An Analysis of Marijuana Policy 12-16 (1982) [hereinafter NRC]. 48. Id. at 12-13. 49. J. Kaplan, supra note 6, at 323-26. Oregon, in the three years following decriminalization in 1973, showed moderate increases in marijuana use in line with regional and nationwide trends. A year after the change in the law, 5% of current users reported that they had increased their consumption. Maloff, A Review of the Effects of the Decriminalization of Marijuana, 10 Contemp. Drug Probs. 307, 309 (1981). Californians who first smoked marijuana after decriminalization rarely stated that the reduction in penalties played a role in their decision to try the drug. Heavy use of marijuana decreased in the state. California officials concluded that decriminalization "has not been a significant factor in the use of marijuana by California adults." California State Office of Narcotics and Drug Abuse, Health and Welfare Agency, First Report of the Impact of California's New Marijuana Law (SB 95) 12, 10-12 (1977). A survey of a group of college students in Nebraska showed that few respondents changed their attitude toward marijuana after decriminalization. Most of the students did not know about the change in the law, and after the new law was explained, 13% of the students said that they would now be more willing to smoke marijuana. Since the initial upsurge in marijuana use in the late 1960s came at a time when possession was a felony, the author of the Nebraska study stated that "lessened penalties for possession are a response to increased use rather than a cause of the increase." Suggs, A Qualitative and Quantitative Analysis of the Impact of Nebraska's Decriminalization of Marijuana, 5 Law & Hum. Behav. 45, 59 (1981). Decriminalizing marijuana possession reduced criminal justice expenses and allowed police to target more serious drug offenders. In California during the first six months of 1976, police costs for arresting, booking, and incarcerating all adult marijuana possession suspects declined from $7.6 million in the same period in 1975 under criminalization to $2.3 million under decriminalization. Costs for courts, prosecutors, public defenders, and probation officers plummeted from $9.4 million to $2 million. Total law enforcement and judicial savings in California during six months of decriminalization amounted to $12.6 million. The number of adult marijuana possession arrests fell 47% in the same period; arrests for other drugs rose considerably. California State Office of Narcotics and Drug Abuse, supra, at 3-6, app. 44. Maine, one of the least populated states to decriminalize marijuana possession, realized a net surplus from merely fining citizens for the infraction. Maine Office of Alcoholism and Drug Abuse Prevention, The Decriminalization of Marijuana and the Maine Criminal Justice System - A Time/Cost Analysis 18 (1979).
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others. 5 The state's severe alcohol abuse problems may be a factor in the high rates of adolescent marijuana use.51 Figures for adult substance use are unavailable, but over ten years of legal at-home marijuana use in Alaska has not triggered any measurable social ills.5 2 The thirty-nine states retaining criminal sanctions for possession of small amounts of marijuana reduced the consequences of arrest and conviction. Several states adopted conditional discharge provisions similar to that of federal law, allowing judges to defer judgment on marijuana possession offenses for a probationary period, upon the completion of which the charges would be dismissed and the arrest record expunged.5 3 Some police officers in criminalized jurisdictions avoided making marijuana possession arrests which were deemed a waste of time.5 The volume of annual possession arrests still generally topped 400,000 through the late 1970s, but millions of American marijuana consumers grew complacent in the knowledge that their chances of facing arrest and conviction were slim. V.
THE PUBLIC HEALTH AND POLICY DEBATE OVER CANNABIS IN THE 1980s
Major research on the health and policy ramifications of cannabis appeared in the early 1980s under the aegis of the American National Academy of Sciences and has helped set the boundaries of public debate in western nations. The Academy's Institute of Medicine cautiously discredited many of the charges against marijuana, yet pointed to the known intoxicating power of the drug and urged more research. In a controversial report, the Committee on
50. Compare B. Segal, J. McKelvy, D. Bowman & T. Mala, Patterns of Drug Use: School Survey 97 (University of Alaska 1983) (adolescent Alaskans sampling marijuana at somewhat higher than national rate) with A. Trebach, The Great Drug War 103 (1987) (Alaskan youth show lower daily use rates for marijuana). For national adolescent use rates, see infra notes 110, 271-74 and accompanying text. 51. A. Trebach, supra note 50, at 102-03. 52. Dunham, When the Smoke Clears, Reason, Mar. 1983, at 33, 36. 53. Bureau of Justice Statistics, U. S. Dep't of Justice, Sourcebook of Criminal Justice Statistics-1986, 62-64 (K. Jamieson & T. Flanagan eds. 1987). Dismissals by prosecutors removed many marijuana offenses from the criminal justice system. R. Bonnie & C. Whitebread, supra note 2, at 239. 54. See Beck, Police Officer Attitudes Toward Marijuana: A Replication and Confirmation, 10 Amer. J. Drug & Alcohol Abuse 519, 523-24 (1984); Roffman, Intrastate Marijuana Law Enforcement, 9 Contemp. Drug Probs. 253, 267 (1980); H. Jones & P. Lovinger, The Marijuana Question, 461 (1985).
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Substance Abuse of the Academy's National Research Council called for removing sanctions against possession of marijuana for personal use and criticized the policy of prohibiting the supply and distribution of the drug. Their thinly-veiled endorsement of a regulated marijuana economy came under attack from Reagan Administration officials and was drowned by a rising tide of public insistence on strict prohibition of all illicit drugs.
A.
THE MYTH OF MARIJUANA'S- GRAVE DANGER TO PUBLIC HEALTH
The Institute of Medicine's 1982 survey, Marijuana and Health, concluded that "marijuana has a broad range of psychological and biological effects, some of which at least under certain conditions, are harmful to human health."55 The Institute voiced "serious national concern" over the rapid spread of a new intoxicant in society and called for "a greatly intensified and more comprehensive program of research into the effects of marijuana on the health of the American people." 6 Despite the Institute's appropriate emphasis on further research of speculative harms of the drug, the report did not link marijuana to the host of maladies prohibitionists claimed marijuana smokers placed themselves at risk of contracting.5" On the key question of marijuana use and long-term psychological effects, Marijuana and Health acquitted the drug: "There is not yet any conclusive evidence as to whether prolonged use of marijuana causes permanent changes in the nervous system or sustained impairment of brain function and behavior in human be'' ings." "Although qualifying its findings with the possibility of future discoveries, the Institute admitted "we have no convincing evidence thus far of any effects persisting in human beings after cessation of drug use." 59 The Institute's findings discredited studies purporting to find brain damage in laboratory animals
55. IOM, supra note 15, at 5.
56. Id.
57. See infra notes 59-84 and accompanying text. A thorough overview in 1986 of marijuana research, observed more forthrightly, "one is forced to conclude that cannabis is a relatively safe drug as social drugs go. To date it compares favorably with tobacco and alcohol, if not with caffeine." Hollister, Health Aspects of Cannabis, 38 Pharmacological Reviews 1, 3 (1986). A 1987 review of marijuana research similarly found allegations against marijuana to be largely unsubstantiated, except for possible lung damage to long-term heavy smokers of the drug. The Harvard Medical School, Mental Health Letter 1 (Nov. 1987). 58. IOM, supra note 15, at 2. 59. Id.
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subjected to supposedly human-equivalent marijuana dosages, as well as clinical speculation on the erosion of mental faculties among marijuana users.6 0 The report also addressed the charge that cannabis consumption leads to the use of other illicit substances. "Association does not prove a causal relation," the Institute wrote, "and the use of marijuana may merely be symptomatic of an underlying disposition to use psychoactive drugs rather than a 'stepping stone' to involvement with more dangerous substances."6 Prohibitionists have shifted to alleging that cannabis is a "gateway" rather than a stepping-stone to other illicit drugs,62 but the bulk of marijuana smokers who do not use other illegal substances shows that the gate is 3 6 narrow. Marijuana and Health rejected the allegation that marijuana use makes individuals indolent and unable to engage in productive pursuits. The Institute found it "difficult to sort out the relationship between use of marijuana and the complex symptoms known as the amotivational syndrome. Self-selection and effects of the drug are probably both contributing to motivational problems seen in some chronic users of marijuana. 6 4 The Institute's observations merely confirmed the experiences of millions of productive moderate marijuana users.6 5 The possibility of respiratory ailments among the few longterm heavy cannabis smokers may be the drug's most serious risk. Marijuana smoke's effect on the lungs resembles that of tobacco. "This suggests," Marijuanaand Health stated, "the strong possibility that prolonged heavy smoking of marijuana, like tobacco, will lead to cancer of the respiratory tract and to serious
60. Id. at 80-89, 120-129. See also Hollister, supra note 57, at 3, 7, 8 (brain atrophy from marijuana has been disproven; field studies of long-term smokers have not shown significant psychological or physical differences between users and non-users). 61. IOM, supra note 15. 62. For allegations of marijuana's "gateway" potential, see D. MacDonald, Drugs, Drinking, and Adolescents, 55-56 (1984); Kozel & Adams, Epidemiology of Drug Abuse: An Overview, 234 Science 970, 973 (1986). 63. IOM, supra note 15, at 2; Robins, infra note 78. 64. IOM, supra note 15, at 2; see also Hollister, supra note 57, at 7 (charges of marijuana causing amotivational syndrome are based on clinical reports, but these episodes do not show that marijuana causes the complex behavioral and lifestyle changes characterizing amotivational syndrome). 65. See Millman, Impact of Marijuana Use on American Society: School, Work, and Home, in Drug Use in Society: Proceedings of Marijuana and Health Conference 46-52 (J. Gampel ed.) (National Organization for the Reform of Marijuana Laws 1984).
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impairment of lung function."6 6 Potential lung damage is probably the most serious risk of intensive, long-term marijuana use, but few cannabis smokers approach tobacco users in frequency of smoking.6" Research on the effect of marijuana on the human reproductive system was deemed inadequate to draw conclusions about harm or lack thereof. Studies after Marijuana and Health have raised the possibility of slightly higher than normal rates of defects among infants of mothers who smoked marijuana during pregnancy, thus placing cannabis in the category of substances to be avoided by pregnant women. 68 Concerning male sexuality, the Institute of Medicine wrote that marijuana "appears to have a modest reversible suppressive effect on sperm production in men, but there is no proof that it has a deleterious effect on male fertility."6 9 Research has failed to demonstrate that marijuana weakens the immune system's ability to ward off disease. Some studies of chronic cannabis users surveyed by the Institute "indicated mild decreases in activity of one or another component of the system; however, other investigators have noted no changes outside of the normal range. "70 Like other speculative allegations against cannabis, the immunosuppression charge has not been supported by clinical evidence among the large population of marijuana
66. IOM, supra note 15, at 3; see also Gong, Fligiel, Tashkin & Barbers, Tracheobronchial Changes in Habitual, Heavy Smokers of Marijuana With and Without Tobacco, 136 Am. Rev. Respiratory Disease 142 (1987) (smokers of at least ten marijuana cigarettes per week for at least five years showed greater lung abnormalitites than a control group of tobacco users smoking at least one cigarette a day for at least one year). Water pipes reduce the carcinogens in marijuana smoke, but are banned by paraphernalia laws. See infra note 130 and accompanying text. Most of the pulmonary damage from marijuana smoking comes from the long and deep inhalations used by marijuana smokers. Wu, Tashkin, Djahed & Rose, Pulmonary Hazards of Smoking Marijuana as Compared to Tobacco, 318 New Eng. J. Med. 347, 350-51 (1988). This smoking behavior reflects efforts to ration an illegal and overpriced commodity. Thus pulmonary dangers, like other mipor health risks of cannabis, can be minimized by legalizing the drug. See infra note 84 and accompanying text. 67. See L. Grinspoon, supra note 1, at 391. 68. Marijuana use during pregnancy may be associated with a higher number of birth abnormalities. Luin, Schoenbaum, Manson, Posner, Stublefield & Ryan, The Association of Marijuana Use with Outcome of Pregnancy, 73 Am. J. Pub. Health 1161, 1164 (1983); Mendelson, Marijuana Smoking Suppresses Luteinizing Hormone in Women, 237 J. Pharmacology & Exper. Therapeutics 862 (1986). But cf. Hollister, supra note 57, at 4-5 ("fetal abnormalities . . . are likely to be rare at best"). 69. IOM, supra note 15, at 3; see also Hollister, supra note 57, at 9-10 (in clinical studies, male "hormone levels generally remained within the accepted limits of normal"). 70. IOM, supra note 15, at 103.
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smokers." Marijuana's effects on the individual under the influence of the drug were concisely summarized in Marijuana and Health:
With a severity directly related to dose, marijuana impairs motor coordination and affects tracking ability and sensory and perceptual functions important for safe driving and the operation of other machines; it also impairs short-term memory and slows learning. Other acute [short-term] effects include feelings of euphoria and other mood changes, but there also are disturbing mental phenomena, such as brief periods of anxiety, confusion, or 71 psychosis.
These well-known potential consequences of cannabis intoxication counsel against use of the drug while operating machines or at school. Anxiety and other bad reactions to marijuana are infrequent and can be alleviated by reassurance in comfortable surroundings. 73 Cannabis is nevertheless potentially hazardous for inailments, including cardiovascular and dividuals with certain 7 4 psychiatric disorders. The Institute of Medicine's attempt to referee the public health debate over marijuana has failed to temper the claims of opponents of marijuana law reform. The government and prohibitionists continue to cite the tenuous claims of laboratory studies as 5 The "new evidence" of marijuana's danger to the public." media
71. L. Grinspoon, supra note 1, at 389-90. Hollister, supra note 57, at 3-4. 72. IOM, supra note 15, at 2. 73. See A. Weil & W. Rosen, Chocolate to Morphine: Understanding Mind-Active Drugs 116 (1983). 74. IOM, supra note 15, at 3. 75. See, e.g., D. MacDonald, supra note 62, at 59-67; Drug Abuse Policy Office, The White House, 1984 Nat'l Strategy for the Prevention of Drug Abuse and Drug Trafficking 20 (1984) (both sources referring to speculative harms of marijuana in sweeping terms without noting the lack of conclusive evidence for such harms and without noting the benign effects of moderate marijuana use). Dr. MacDonald, director of the Reagan Administration's Drug Abuse Policy Office and head of the Alcohol, Drug Abuse and Mental Health Administration wrote in 1984 that Marijuana and Health was "packed with reports detailing the negative effects of the drug." He presents research discredited by the Institute and ignores the lack of conclusive evidence for many of the purported effects of marijuana. Cf., e.g., D. MacDonald, supra note 62, at 60-61 (monkey research demonstrates brain damage from marijuana) with IOM, supra note 15, at 81-82 (the monkey study used questionable methodology and was contradicted by other studies). Among the alleged new dangers about which prohibitionists frequently sound alarms is the accumulation of cannabis molecules in regular smokers. These concerns are groundless since these metabolites are non-toxic and are not psychoactive. Hollister, supra note 57, at 11-12, 17: A. Well & W. Rosen, supra note 73, at 118. Outcry over increases in marijuana
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in the 1980s often uncritically publicizes these pronouncements." Marijuana and Health and other research rebuff efforts to portray marijuana as definitively condemned by the medical community. Few cannabis users lapse into an indolent amotivational syndrome 77 and most do not even try cocaine or heroin, much less become dependent on these drugs.78 Cancer, birth defects, intellectual impairment, lowered immunity, sexual dysfunction and other feared afflictions from regular marijuana use have not appeared in the United States or other countries with longer histories of widespread cannabis consumption, and laboratory work on these effects is conflicting.79 The vast majority of cannabis consumers pursue
potency is another red herring. See infra notes 116-121 and accompanying text. Commentators have noted that the government's responsibilities for enforcement of prohibition, drug abuse prevention, and research have fostered inaccurate presentations of marijuana research that fan public fears of the drug. See A. Trebach, supra note 50, at 7785, 138-42; M. Kleiman, Allocating Federal Drug Enforcement Resources: The Case of Marijuana 58-59 (May, 1985) (doctoral thesis, Harvard University). See also Lasagna, Is the Social Use of Marijuana Dangerous or Addicting?, 5 Advances in Alcohol & Substance Abuse 77 (1985/86) (physician's lament over exaggerations of marijuana's risks). The government's unflinching opposition to marijuana extends to the debate over medicinal uses of the drug. The DEA began holding hearings on the issue only after a federal court ordered the step. Knight, The Case For Prescription Pot, Washington Post, June 14, 1988, at C1, col. 1. 76. A recent example of uncritical acceptance and exaggeration of tentative research purporting to demonstrate new dangers from marijuana is the coverage accorded a study in which ten pilots performed poorly on flight simulators twenty-four hours after a strong dose of cannabis. The study was at variance with previous research on the duration of marijuana impairment, and the authors noted this, but an article in Time magazine thought the results might justify workplace urine tests for marijuana. Castro, Battling the Enemy Within, Time, Mar. 17, 1986, at 52, 61; Yesavage, Leirer, Denari, & Hollister, Carry-over Effects of Marijuana Intoxication on Aircraft Pilot Performance: A Preliminary Report, 142 Am. J. Psychiatry 1325 (1985). See generally Morgan, Carry-over Effects of Marijuana, 144 Am. J. Psychiatry 259 (1987) (impairment more than four hours after marijuana use has rarely been reported, and the methodologically flawed Yesavage study has been misused to justify urine tests). For a discussion of sensationalism in drug reporting, see Weisman, I Was A Drug-Hype Junkie, The New Republic, Oct. 6, 1986, at 14. 77. Even adolescent marijuana users, deemed most at risk from the drug, are able to moderate their habits and rarely lapse into an amotivational syndrome. Glassner, Carpenter & Berg, Marijuana in the Lives of Adolescents. in Teen Drug Use 111, 117 (1986); Smith & Seymour, Clinical Perspectives on the Toxicity of Marijuana 1967-81, in Marijuana and Youth: Clinical Observations on Motivation and Learning (1982). 78. Epidemiology continues to show that marijuana is only a predictor for cocaine use if marijuana use begins early in adolescence. Robins, The Natural History of Adolescent Drug Use, 74 Am. J. Pub. Health 656, 657 (1984). 79. See Hollister, supra note 57, at 17; N. Zinberg, Drug, Set, and Setting 34, 196 (1984); M. Kleiman, supra note 75, at 57, 48-56. On the sound health of multi-decade cannabis users, see Cannabis in Costa Rica (W. Carter ed. 1980) and V. Rubin & L. Comitas, Ganja in Jamaica (1975). College students using marijuana regularly continue to show no
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their habit in moderation with no ill effects.8 0 Sensational charges of frightening potential consequences of marijuana use may detract from addressing the very real problems of the small fraction of cannabis users who develop dependencies that interfere with learning, work, and relationships." Discouraging adolescent use of mari-
juana and all psychoactive substances is a priority all endorse, and

exaggerating the dangers of marijuana hampers effective drug education.82 Marijuana intoxication among those driving or in
difference from their non-using peers in grades or extracurricular involvement. Pope, Ionescu-Pioggia & Cole, Drug Use and Life-Style Among College Undergraduates, 38 Archives Gen. Psychiatry 588, 590-91 (1981). 80. The American Medical Association's Council on Scientific Affairs wrote that "for healthy users, occasional ingestion of even relatively potent marijuana might not always constitute a health or social hazard." Marijuana: Its Health Hazards and Therapeutic Potentials, J. A.M.A., Oct. 16, 1981, at 20. 81. The American Psychiatric Association defines cannabis abuse as "a pattern of pathological use for at least a month that causes impairment in social or occupational functioning." Criteria for pathological use are "intoxication throughout the day; use of cannabis nearly every day for at least a month; episodes of Cannabis Delusional Disorder." Am. Psychiatric A., Diagnostic and Statistical Manual of Mental Disorders 175-76 (3d ed. 1980). Of the twenty million regular marijuana smokers (smoking at least once a month) in 1982, 20% smoked twenty days or more out of each month. Only 8% of the 20 million regular smokers, 1,655,000 people, smoked two or more marijuana cigarettes each of the twenty or more days a month they smoked. See J. Miller & I. Cisin, Highlights from the National Survey on Drug Abuse: 1982 6 (National Institute on Drug Abuse [hereinafter NIDA] 1983); J. Miller, I. Cisin, H. Gardner-Keaton, A. Harrel, P. Wirtz, H. Abelson & P. Fishburne, National Survey on Drug Abuse: Main Findings 1982 42 (NIDA 1983) [hereinafter 1982 National Survey]; NIDA, Population Projections Based on the National Survey on Drug Abuse 1982 vi, 5 (1983). The small subset of heavy, near-daily marijuana smokers does not define the group of abusers, since functional impairment is the key objective criterion for diagnosing abuse. Compare Weller & Halikas, Objective Criteria for the Diagnosis of Marijuana Abuse, 168 J. Nervous & Mental Disease 98 (1980) (9% of a small clinical study group of regular users qualified as abusers) with Roffman & Barnhart, Assessing Need for Marijuana Dependence Treatment Through an Anonymous Telephone Interview, 22 Int'l. J. of the Addictions 639 (1987) (Of 225 respondents to a Seattle media campaign seeking those interested in help for marijuana dependence, two-thirds were smoking two or more joints per day). Regardless of the criteria for measuring abuse, the national demand for aid in quitting marijuana is not high. See M. Kleiman, supra note 75, at 46. Dependent cannabis smokers get assistance from support groups like "Pot-smokers Anonymous." Kovcak, Marijuana Potency Rises Four-Fold, U.S. J. Drug & Alcohol Dependence, Oct. 1985, at 8, col. 1. Almost all marijuana treatment is done on an outpatient basis and most referrals to treatment programs are involuntary. See infra note 115. For discussions of the problems of marijuana dependent persons, see Patterns of Marijuana Use in Conjunction with Other Drugs: Panel Discussion, in Social Drug Use in Society: Proceedings of Marijuana and Health Research Conference 52 (Nat'l Org. for the Reform of Marijuana Laws 1985); A. Weil & W. Rosen, supra note 73, at 119. 82. J. Fort, supra note 36, at 144-48; Smith, Reviewing Adolescent Marijuana Abuse, 29 Social Work 17, 19-20 (1984).
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positions to endanger others must also be combatted 83 Prohibition itself causes serious health hazards because of an unregulated marijuana market, which results in adulteration, contamination, unknown potencies, and toxic herbicides applied by government eradication programs. 4
B.
THE NATIONAL ACADEMY OF SCIENCES CRITIQUES PROHIBITION
Another National Academy of Sciences report issued in 1982 considered marijuana's minor effect on public health and challenged the rationale of marijuana prohibition. An Analysis of Marijuana Policy concluded that "a policy of partial prohibition [of marijuana] is clearly preferable to a policy of complete prohibition of supply and use. . . . We believe, further, that current policies directed at controlling the supply of marijuana should be seriously reconsidered." 8 An Analysis of MarijuanaPolicy contradicted the Reagan Administration's dedication to strengthening marijuana prohibition and it immediately came under attack."' The committee of the Academy's National Research Council which wrote Marijuana Policy began its report by discussing the
83. The prevalence of marijuana has implicated it as a major factor in accidents in some studies. See "34.7% of Patients at Trauma Unit Used Marijuana," Washington Post, June 2, 1988, at D4, col. 4. But marijuana use may not impair performance skills as much as alcohol because of the ability of some experienced marijuana smokers to compensate for the drug's effects. A. Weil & W. Rosen, supra note 73, at 120; L. Grinspoon, supra note 1, at 377; J. Fort, supra note 36, at 59-60. Mentions of marijuana use by patients admitted to emergency rooms for drug abuse complications illustrate the minor effect of cannabis on public health. Of 105,700 drug abuse episodes reported by 733 emergency rooms in 1985, marijuana was mentioned by 5% of the victims. Seventy-five percent of these marijuana episodes involved marijuana use with another drug. NIDA, Annual Data 1985: Data from the Drug Abuse Warning Network (DAWN) iii, 44-45, 192 (1986). Unlike alcohol, cocaine, and heroin, marijuana cannot be consumed in fatal quantities by a healthy individual. L. Grinspoon, supra note 1, at 228. Adverse reactions to marijuana are usually minor and rarely cause those affected to seek medical assistance. See IOM, supra note 15, at 122. 84. NRC, supra note 47, at 17; see IOM, supra note 15, at 25; Spector, AMP: A New Form of Marijuana, 46 J. Clinical Psychiatry 498 (1985) (marijuana soaked in formaldehyde, with potentially disastrous results). Prohibitionists purporting to write objectively about marijuana's harms fail to note that adulterants are a consequence of an unregulated black market where cannabis is not subjected to quality controls normal for any product for human consumption. See, e.g., H. Jones & P. Lovinger, supra note 54, at 38-39. 85. NRC, supra note 47, at 29-30. 86. Id. at vii-viii; Pot Shot, Time, July 16, 1982, at 42. See generally Walsh, Frank Press Takes Exception to NAS Panel Recommendations on Marijuana, 217 Science 228, 229 (1982) (some members of the Marijuana Policy Committee originally leaned toward a call for legalization).
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findings of its sister study group in Marijuanaand Health. While agreeing that marijuana use, particularly among adolescents, is "cause for extreme concern," the committee decided that minor health risks cannot dictate drug policy: "[Ojur judgment as to behavioral and health-related hazards is that the research has not established a danger both large and grave enough to override all other factors affecting a policy decision."8 On this premise, Analysis of MarijuanaPolicy encountered unflinching opposition from the government and prohibitionists. The report delineated three policy options for marijuana: (1) complete marijuana prohibition; (2) prohibition of supply only (decriminalization); and (3) legalization. Policy in 1982 was labeled as one of complete prohibition by federal law and the law of thirtynine of the states. The committee recognized that the lenient enforcement of many state possession laws blurred the practical distinctions between complete and partial prohibition. 8 The partial prohibition policies in effect in the decriminalization states won the committee's approval. "Probably the most important fact about a policy of prohibition of supply only," the report declared, "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."8 9 Acknowledging that a partial repeal of use prohibition was taking place in some of the criminalized states, Marijuana Policy reemphasized that formal legislative approval of decriminalization did not seem to add to the growth of use or symbolize that marijuana use was deemed safe.'0 The committee also addressed the intangible cost of criminalizing marijuana smokers in the stigma attached to someone arrested or convicted for marijuana possession. Otherwise law-abiding citizens face severe career-limiting repercussions from employers and licensing agencies.1 Arrests and convictions for marijuana possession disillusion millions of citizens with the nation's legal and political institutions. In the committee's opinion, "[a]lienation from the rule of law in democratic society may be the most serious cost of current marijuana laws."' 92 Marijuana smokers
87. 88. 89. 90. 91. 92. NRC, Id. at Id. at Id. at Id. at Id. supra note 47, at 29, 6. 6-9. 12-13. 14. 15.
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know their chances of arrest are slim, but they know they are breaking the law when they possess or purchase the substance. An Analysis of Marijuana Policy fell just short of recommending an end to prohibition of supply. The committee contrasted criminalized production and distribution with a theoretical regulated cannabis market. Advantages of regulated legal marijuana would include "the disappearance of most illegal market activity, the savings in economic and social costs of law enforcement directed against illegal supply systems, better controls over the quality and safety of the product, and, possibly, increased credibility for warnings about risks." ' s A regulated system of supply could be modeled on current alcohol policy, with its mixture of federal, state and local provisions tailored to specific concerns.94 Prohibition of supply exacts an exorbitant price for its limited effectiveness, the committee stated. Marijuana law enforcement costs, although difficult to estimate, total in the billions of dollars and have little success in reducing the availability of cannabis or 95 Crime and corruption stemming demand for it. from the multibillion dollar cannabis black market are commonplace and include the deaths of many law enforcement officers and marijuana traffickers.96 Marijuana users must deal with elements of this underworld to acquire their product. The underground cannabis industry helps support other illicit drugs, particularly cocaine, through smuggling and distribution networks. The committee noted that retail marijuana dealers often sell other illicit drugs and thus the illegality of marijuana promotes the use of cocaine and other controlled substances. e7 The major risk of a regulated, legal marijuana supply would be
93. Id. at 17. 94. Id. at 24-25. 95. Id. at 18-19. One researcher estimated federal marijuana enforcement costs in 1984 to be $435 million. M. Kleiman, supra note 75, at 74. Federal expenditures have skyrocketed since 1984, see part VII infra, and total federal, state, and local expenditures for all drug law enforcement amounted to $6.2 billion in 1986. U.S. Customs Service, Anti-Drug Law Enforcement Efforts and Their Impact 1 (1987). 96. NRC, supra note 47, at 19. For a discussion of corruption, see infra note 180. For a discussion of deaths from marijuana law enforcement, see infra note 283. The retail marijuana market was estimated at $6.1 billion in 1982. See infra note 284. 97. NRC, supra note 47 at 19-21. Law enforcement success in increasing the price and reducing the availability of marijuana also encourages the use of cocaine and other drugs. See Lindsey, Marijuana Drive Reduces Supplies and Raises Prices, N.Y. Times, Oct. 4, 1986, at A4, col. 1; Criminal Justice and Drugs: The Unsolved Connection 69, 120 (J. Weissman & R. DuPont eds. 1982).
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an unpredictable increase in cannabis consumption. Marijuana Policy labeled this "the most significant cost" of ending the prohibition on supply.9 8 The committee argued that prospects for a large upsurge in marijuana smoking are doubtful since the group most prone to using the drug, the young, already have easy access to it." The greatest increase in availability, the report stated, would be among older adults who lacked contact with the drugusing subculture and who were more deterred by the substance's 00 illegality. 1 The committee contended that legality is compatible with a public perception and policy oriented to the drawbacks of marijuana smoking. "[T]here is no indication," the authors wrote, "that the elimination of penalties for marijuana use has caused the drug to be regarded as any less dangerous."'' 1 The public's belief in the potential harm of marijuana dropped in the 1970s, but this trend 102 1980s. the in reversed Controlling cannabis use habits under a regulatory scheme would be difficult, MarijuanaPolicy admitted. Placing a high but sub-black market price on legal cannabis would be the best strategy. Adults would prefer the legal source, and the black market for marijuana would dwindle much like the supply of illegal alcohol has, thus leaving youths with less access to black market cannabis. Prohibiting the commercial sale, but not the cultivation, of high potency marijuana would channel consumers to the legally available product of moderate strength. Knowing the exact THC content of a cannabis product would probably go far to reduce the adverse reactions. l s The committee placed faith in the judgment of users not to abuse cannabis. "It is likely," according to the report, "that under a regulatory system consumption would in great part be controlled by informal social norms - as it is today."' 1 4 Most people trying
98. NRC, supra note 47, at 21. 99. Id. at 23. Numerous polls reveal that few citizens who do not smoke marijuana would sample marijuana upon legalization. See D. Peck, Belief, Deterrence, and Marijuana Use 68-69 (1980); see infra note 274. 100. NRC, supra note 47, at 21. 101. Id. at 24.
102. See infra note 272 and accompanying text; Field Institute, California Opinion Index (Aug. 1983), reprinted in Current Status of Drug Abuse Prevention and Treatment: Hearing Before the Subcomm. on Crime of the Senate Comm. on the Judiciary, 98th Cong., 1st Sess. 24-26 (1983). 103. NRC, supra note 47, at 25-26. 104. Id. at 25.
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marijuana do not progress to regular use, and most users do not advance to daily smoking.'1 5 Such self-regulating mechanisms would be improved by making marijuana smoking an above-board activity. "[A]n adolescent would be introduced to the drug through families and friends who practice moderate use," the committee predicted, "rather than through their heaviest-using, most druginvolved peers." 106
An Analysis of Marijuana Policy suffered official rejection similar to that which greeted Marihuana:A Signal of Misunderstanding a decade earlier in 1972.107 The rejection of the report exemplified the Reagan administration's commitment to escalating the war on drugs, including marijuana. MarijuanaPolicy failed to spur consideration of its proposals and became a postscript to the marijuana law reform debate of the 1970s.
VI.
MARIJUANA PROHIBITION RESURGENT
A consensus emerged in the late 1970s and 1980s that cannabis use endangers American society, particularly the nation's youth, and therefore the drug has to be battled indiscriminately along with cocaine and heroin. Support for decriminalization of marijuana declined and was supplanted by demands for intensified government enforcement against all illegal drugs. New community action groups led by the National Federation of Parents for Drug Free Youth (NFP) opposed decriminalization and pressed for strong action to deter the use of marijuana and other illicit drugs, 0 8 Adolescent marijuana use, the particularly among adolescents. 1 appearance of cocaine use and abuse on a national scale and the
105. See 1982 National Survey, supra note 81, at 27-28. 106. NRC, supra note 47, at 28. 107. The chairman of the National Research Council voiced the objections of the government and prohibitionists in his cover letter accompanying the report: "I ... am concerned that the Committee may have gone beyond its charge in stating a judgment so valueI fear that this report, laden, that it should have been left to the political process .... coming as it does from a well-known and well-respected scientific organization, will be misunderstood by the media and the public to imply that new scientific data are suddenly available that justify changes in public attitudes on the use of marijuana." Id. at vii-viii. 108. See M. Manatt, Parents, Peers, and Pot 11 (1983); Macdonald, supra note 62, at 111-28 (1984). For a discussion of the rise of the political clout of the parents groups, see P. Anderson, supra note 22, at 300-05; A. Trebach, supra note 50, at 118-42. The parents groups are heavily subsidized by the federal government. See Current Status of Drug Abuse Prevention and Treatment: Hearing Before the Subcomm. on Crime of the Senate Comm. on the Judiciary, 98th Cong., 1st Sess. 128 (1983) (testimony of Sue Rusche, Executive Director, Families in Action, Secretary, NFP).
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rising potency of marijuana served as new rationales for cannabis prohibition. Although none of these justifications bears scrutiny, they have not been debated as the nation has focused on the undifferentiated problem of illicit "drugs" and "narcotics."' 9
A. THE NEW REDHERRINGS BLOCKING MARIJUANA LAW REFORM
1. Adolescent Marijuana Use The question of adult civil liberties has faded from the marijuana debate, replaced by the perceived threat to the small percentage of marijuana smokers who are adolescents. Heavy marijuana use among some high school students during the late 1970s spurred the rise of parents groups and the reaction against easing marijuana laws. 110 Prohibitionists reported "the disturbing, even frightening, picture of marihuana's debilitating effect on youngsters. . . . Parents . . . saw with their own eyes the slow, insidious deterioration of personality, intellect, and physical health in their pot-smoking children.""' High school marijuana use, however, has declined steadily since 1978, thus deflating the prohibitionist's portrayal of an ongoing crisis." 2 Although any level of high school marijuana smoking must be strongly discouraged, most students who try marijuana do
109. See Reuter, Coda: What Impasse? A Skeptical View, 11 Nova L.J. 1025, 1027-28 (1987); Roffman, 10 Contemp. Drug Probs. 264 (1981) (editor's page). An example of the prevalent rhetoric is Rosenthal, The Phony War, N.Y. Times, Mar. 15, 1987, at E25, col. 4 ("Drugs not only poison the lives of adults and adolescents but now, every day, cripple the minds of children, even the 10-year-olds, 9-year-olds.") This column by the former executive editor of the New York Times does not differentiate between heroin, cocaine, and marijuana as "poison." The New York Times itself, by contrast, has stressed that drugs should be differentiated and has steadfastly called for the decriminalization of marijuana. Which Way on Drugs? - Make a Dent by Making Choices, N.Y. Times, Aug. 31, 1987, at A18, col. 1. 110. H. Jones & P. Lovinger, supra note 54, at ix, 258; Himmelstein, supra note 22, at 10. In 1978, one of every nine high school seniors was smoking marijuana more than twenty days a month, often before and during school. L. Johnston, P. O'Malley & J. Bachman, Drugs and American High School Students 1975-1983 20 (1984). In 1985, adolescents aged 17 and younger constituted only 15% of regular (once a week or more) marijuana smokers. See NIDA, National Household Survey on Drug Abuses: Population Estimates 1985 10, 62 (1987). 111. Schuchard, The Floodtide of Drugs and the Very Young, in Drug Abuse In The Modern World 316, 318 (Nahas & Frick eds. 1981). 112. See infra notes 271-73 and accompanying text. Drug historian David Musto has observed that rising intolerance to illegal drug use in the United States has often paralleled a decline in the drug's popularity. Allen, Up in Smoke: Marijuana in America, Washington Post, Nov. 7, 1987, at C1, col.1.
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not progress to regular use, and those who continue on to engage in near-daily smoking usually cease this level of use in less than a year."' Even among adolescents, cannabis rarely produces dependency and heavy use is merely a phase."" Prolonged heavy marijuana use may only be a symptom of a troubled adolescence, but heavy cannabis use in itself can exacerbate a teenager's problems. Marijuana use can also serve as a scapegoat for teenagers' behavioral problems, and in the late 1970s and early 1980s children were increasingly committed to controversial drug treatment programs that have proliferated in these years."' 2. Rising MarijuanaPotency
Marijuana's increasing potency in the 1980s added to public concerns over the drug. Marijuana farmers both in the United States and abroad have cultivated higher potency plants to reap the greater prices paid in the black market for stronger preparations." 6 Between 1976 and 1981, the average THC content of samples of confiscated marijuana samples hovered near two percent; from 1982 to 1986 the potency of seizure samples ranged from 2.7 7 to nearly 4 percent." percent Prohibitionists dwell on the higher potency of cannabis as one of the new dangers of the drug that renders inapplicable old arguments in favor of moderating marijuana policy. Prohibitionists do not explain, however, what difference more potent marijuana makes for users." 8 Smokers of greater strength cannabis introduce
113. See L. Johnston, P. O'Malley & J. Bachman, supra note 110, at 20, 85, 396-98. 114. Id. at 396-98. See Smith & Seymour, supra note 77. 115. A. Trebach, supra note 50, at 19-63; J. Polich, P. Ellickson, P. Reuter & J. Kahan, Strategies For Controlling Adolescent Drug Use 114, 158-59 (1984). Even an advocate of committing youths for daily marijuana smoking acknowledges the controversy surrounding some drug treatment programs. D. Macdonald, supra note 62, at 155-56, 163-64. Well over half of the admissions to drug treatment programs for marijuana are involuntary. (NIDA statistics for "voluntary" admissions include referrals by schools and employers). See NIDA, Demographic Characteristics and Patterns of Drug Use of Clients Admitted to Drug Abuse Treatment Programs in Selected States: Annual Data 1984 60 (1987). President Ford's Task Force on Drug Abuse criticized wasting drug treatment resources on involuntary referrals of marijuana smokers. See Domestic Council Drug Abuse Task Force, supra note 40, at 27-28. 116. National Drug Enforcement Policy Board, Dept. of Justice [hereinafter NDEPB], Analysis of the Domestic Cannabis Problem and the Federal Response 6-9 (1986). 117. Elsohly & Abel, Quarterly Report, Potency Monitoring Project, Report #18 (Apr. 1, 1986 - June 30, 1986) 4 (Alcohol, Drug Abuse, and Mental Health Administration 1986). 118. Pollin, Research in the Field of Drug Abuse, in Drug Abuse in the Modern World, supra note 111, at 294. An example of prohibitionist hyperbole over the purported
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less smoke into their lungs to achieve the same effect as those using larger amounts of weaker preparations. 1 9 Disparities in cannabis quality have long required smokers to judge the potency of the product from the first few inhalations in order to decide whether
to consume more. Extra-potent cannabis can nevertheless have a

strong intoxicating effect from just one or two inhalations, which can be dangerous for inexperienced smokers or those at risk of ma20 rijuana's acute effects. 1 The rise of potent cannabis in the 1980s represents another drawback of the black market that legalization would ameliorate. The government could forbid the sale of extra-potent cannabis and label legal marijuana to indicate its intoxicating potential. Powerful strains of illegal marijuana would still be cultivated and sold under a legalization regime, but ending prohibition would dismantle the vast black market that currently distributes all cannabis. The scarcity of potent black market alcohol today as compared to during prohibition suggests that smokers would prefer legal marijuana of moderate and certain strength.' 2 ' 3. The Rise of Cocaine Abuse and the Marijuana Issue Cocaine's arrival in middle America in the late 1970s and the
increase in cocaine abuse in the 1980s contributed to the reaction

increase in the danger of marijuana is the comment of New York Mayor Edward Koch on the television show Firing Line: "Marijuana today, they estimate is seven to ten times more dangerous because of the fact that the THC quotient is far greater today." p. 20 (Oct. 16, 1986) (transcript from Southern Educational Communications Association). 119. See N. Zinberg, supra note 79, at 16, 17, 137-38; Herning, Hooker & Jones, Tetrahydrocannabinol Content and Differences in Marijuana Smoking Behavior, 90 Psychopharmacology 160, 162 (1986). A study of Ontario cannabis smoking adolescents found that smoking hashish, usually a higher THC content preparation than marijuana, did not produce different rates from marijuana-only smoking youth for continuing or quitting the habit. Goodsadt, Chan, Sheppard, & Cleve, Factors Associated With Cannabis Nonuse and Cessation of Use: Between and Within Survey Replications of Findings, 11 Addictive Behaviors 275, 284 (1986). The same survey found cannabis users indistinguishable from non-users in grades, church attendance, and other social criteria. Id. at 283. Perhaps because of increases in marijuana potency, American high school students report that they smoke less marijuana when they do choose to use the drug. L. Johnston, P. O'Malley, J. Bachman, Drug Use Among American High School Students, College Students, and Other Young Adults 109 (1986). 120. Kovcak, supra note 81; Kerr, Increases in Potency of Marijuana Prompt New Warnings for Youths, N.Y. Times, Sept. 25, 1986 at Al, col. 5. 121. See NRC, supra note 47, at 25. Government success in blocking imports of relatively lower potency Colombian cannabis further exacerbates any problems due to THC content. Reuter, supra note 109, at 1031.
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against marijuana law reform and helped refocus the public dialogue on bolstering drug law enforcement in general. 122 Cocaine, once confined to the wealthiest of illicit drug users, grew in availability and popularity in the late 1970s and declined in price in the 1980s. Cocaine sniffing among youths and young adults generally stabilized in the early 1980s at a rate well below that of marijuana smoking, but fatalities and emergency room episodes from cocaine abuse soared and reached the low thousands annually." 3 Combatting cocaine became the new priority for federal, and many state and local, drug enforcement efforts. 2 " The panic over cocaine prompted a surge in drug law enforcement, but few realized that marijuana, being far more pervasive and easier to detect, would still command a lion's share of police resources. " ' Widespread cocaine sniffing in the late 1970s and crack smoking in the mid-1980s revived contentions that marijuana smoking leads to the use of other illicit drugs. A large majority of cocaine users smoked marijuana prior to trying cocaine, inspiring the charge that marijuana constituted a dangerous "gateway" to cocaine. 12 Over 75% of regular marijuana smokers, however, do not use cocaine at all, rendering the gateway quite narrow. 2 7 4. Drug Paraphernalia The appearance of a sizable drug paraphernalia industry in
122. See Kerr, Anatomy of the Drug Issue: How, After Years, It Erupted, N.Y. Times, Nov. 17, 1986, at Al, col. 3. 123. NDEPB, National and International Drug Law Enforcement Strategy 23 (1987). In 1985 and 1986 a more potent, smokable form of cocaine known as "crack" appeared on the streets in prepackaged inexpensive doses and triggered severe abuse problems in some populations susceptible to the abuse of hard drugs. See Kerr, Addiction's Hidden Toll: Poor Families in Turmoil, N.Y. Times, June 23, 1988, at Al, col. 1; Kerr, High-School Marijuana Use Still Declining, U.S. Survey Shows, N.Y. Times, Feb. 24, 1987, at A21, col. 2; Kerr, Growth in Heroin Use Ending as City Users Turn to Crack, N.Y. Times, Sept. 13, 1986, at Al. col 1. 124. Kerr, New Voice and Visibility for D.E.A. in New York, N.Y. Times, Mar. 15, 1987, at E5, col. 2; Brinkley, Drug Use Held Mostly Stable or Lower, N.Y. Times, Oct. 10, 1986, at A14, col. 1; Kerr, City Sets Up Unit To Combat Crack, N.Y. Times, May 22, 1986, at Al, col. 1. 125. Cowan, How the Narcs Created Crack, Nat'l Rev., Dec. 5, 1986, at 18, 26. See also Kleiman, supra note 75, at 80 (marijuana cases formed 13% of the DEA's cases in 1979 and 26% of the cases in 1984). Marijuana arrests continue to be the plurality of drug arrests. See infra note 181. 126. Thomas, America's Crusade, Time, Sept. 15, 1986, at 60, 62. 127. See NIDA, Highlights 1985 National Household Survey on Drug Abuse 3 (1986). Marijuana smoking shows a strong statistical correlation with future cocaine use only if cannabis use starts in early adolescence. Robins, supra note 78, at 656.
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the 1970s added momentum to the backlash against marijuana law reform. The anti-drug parents groups expressed outrage at the blatant commercialization of illegal drug use. The spread of local "head shops" containing displays of exotic cannabis-smoking accessories and some items designed to attract young drug users 8 New antihelped spur many parents to fight the "drug culture. ' 12 paraphernalia statutes in the early 1980s curtailed the most visible drug accessory sales.12 9 Strict control of the commercial exploitation of legalized cannabis should continue in a regulated market, but some provisions should be made for accessories that marijuana consumers want. Water pipes, for instance, remove some carcinogens from marijuana smoke and banning their sale is 0 hypocritical.1 3 The new agenda of drug issues in the 1980s helped turn public opinion against marijuana law reform. In 1977, 41% of adults felt possession of small amounts of marijuana should be a criminal offense; this figure increased to 50% in 1985 and 57% in 1986.13 1 Strong support for decriminalization and legalization of cannabis in the mid-1980s could only be found among young adults aged eighteen to thirty, 40% of whom felt that possession of small 1 32 amounts of marijuana for personal use should not be penalized. Public attitudes toward cannabis hardened in the 1980s despite a steady decline in marijuana smoking, which presumably reduced its threat to society. 33
VII. THE DRUG ENFORCEMENT JUGGERNAUT
The federal government capitalized on the consensus in the 1980s against illicit drugs to escalate its attack on the sources and distributors of controlled substances. The "war on drugs" first
128. H. Jones & P. Lovinger, supra note 54, at 257. 129. Mail Order Drug Paraphernalia Act: Hearing on H.R. 1625 Before the Subcomm. on Crime of the House Comm. on the Judiciary, 99th Cong., 2d Sess. 55 (1986) (Statement of James Knapp, Deputy Asst. Atty. Gen.). See generally Katkin, Hunt, & Bullington, Drug Paraphernalia in Perspective: The Constitution & the Spirit of Temperance, 21 Crim. L. Bull. 293 (1985)(charting rise of paraphernalia laws and arguing their unconstitutionality on freedom of expression grounds). 130. Reuter, supra note 109 at 1031; M. Kleiman, supra note 75, at 49. 131. Bureau of Justice Statistics, supra note 53, at 133, 134. 132. Sussman, Drug Use Tops '60s Level, Washington Post, June 12, 1985, at D1, col. 1. 133. See infra notes 269-73 and accompanying text for a discussion of the decline in marijuana use in the 1980s.
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T declared by President Nixon in 1969 M ' underwent a phenomenal acceleration in the 1980s that created vast police forces and powers while failing to decrease the supply of marijuana. 3 5 The United States embarked on an unprecedented multi-billion dollar annual commitment of law enforcement resources to eradicate cannabis, cocaine, heroin and other illicit drugs and to apprehend the people and assets connected to them."' That drug use in many categories had declined or leveled off by the mid-1980s was a fact largely ignored in the redoubling of the "war" - the media, public and legislatures agreed that undifferentiated "drugs" constituted a peril demanding extraordinary measures to protect society and its youth. 137
A.
THE EXECUTIVE BRANCH'S ARMADA
National drug law enforcement responsibilities in the mid1980s fall upon fourteen different federal agencies, ranging from the flagship Drug Enforcement Administration (DEA) to civilian entities traditionally unconcerned with law enforcement such as the United States Forest Service."'8 The Coast Guard and the Customs Service continue their primary responsibility of interdicting the importation of cannabis and other drugs at the borders and in the waters and airspace surrounding the United States. 3 9 The State Department's Bureau of International Narcotics Matters
134. Richard Nixon coined the now well-worn "war on drugs" battle cry in 1969. R. Nixon, Presidential Papers, Mar. 10, 1969. 135. Despite seizing over 2.2 million pounds of marijuana annually in 1985 and 1986, the federal government confiscated less than 10% of the cannabis entering the United States. General Accounting Office [hereinafter GAO], Drug Smuggling 38-39 (1987). The wholesale price of marijuana has remained stable since 1983, see National Narcotics Intelligence Consumers Committee [hereinafter NNICC], The NNICC Report 1985-86, 8 (1987), and the percentage of high school seniors stating that marijuana is easy to get has remained above 85% since 1975. L. Johnston, P. O'Malley & J. Bachman, supra note 119, at 143. 136. The federal drug enforcement and treatment budget totaled $86 million in 1969 amidst the explosion in illicit drug use. In the fall of 1986 Congress was nearly unanimous in approving a drug budget of $3.93 billion, 75% of which was for law enforcement. The $3.93 billion budget approved in 1986 represented a tripling of the federal effort over 1981 expenditures. See A. Trebach, The Heroin Solution, 233, 226-66 (1982) (evolution of drug budgets in 1960s and 1970s); NDEPB, supra note 123, at 181-88 (details of federal drug enforcement and treatment spending 1981-88); Weinraub, The Matter of Money and Fighting Drugs, N.Y. Times, Feb. 9, 1987, at B6, col. 2. 137. See Kerr, supra note 122; Gailey, War on Narcotics Emerging as Issue in Fall Campaigns, N.Y. Times, Sept. 9, 1986, at Al, col. 7. 138. NDEPB, supra note 123, at 182-83. 139. Drug Abuse Policy Office, supra note 75, at 48-51.
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assist drug law enforcement efforts in drug producing countries with extensive training, crop eradication and crop substitution programs. The Central Intelligence Agency provide satellite surveillance and information on illegal drug activity abroad. 140 Complex financial investigations of suspected drug traffickers provide the Internal Revenue Service with a major role in drug law enforcement. The Federal Bureau of Investigation entered drug enforcement in 1982 to pursue drug trafficking by organized crime. And the new player perhaps most illustrative of the war's seriousness, the Department of Defense, in 1981 began logistical and intelligence support for offshore drug enforcement programs.1 4 1 B.
THE CONGRESSIONAL CHARGE
Broader and tougher criminal laws have accompanied the rise
of the drug enforcement superstructure and raised the police presence in American society to new heights. Wire taps and other electronic surveillance, sanctioned by the 1968 Omnibus Crime Control Act, play an important role in federal drug enforcement and their 4 2 In 1970 use has soared in the 1980s. 1 Congress passed the Com-
prehensive Drug Abuse Prevention and Control Act, the foundation of the current federal drug laws.14 The Continuing Criminal
140. Id. at 71-72, 60-61. Since 1971, the Bureau of International Narcotics Matters has funded training for approximately 30,000 foreign drug enforcement officers. Bureau of International Narcotics Matters [hereinafter BINM], United States Department of State, International Narcotics Control Strategy Report 37 (1987). 141. S. Wisotaky, Breaking the Impasse in the War on Drugs 92-95, 136-37 (1986). Funding for Department of Defense activities in support of drug enforcement ballooned from $5 million in 1982 to $387 million in 1987. GAO, supra note 135, at 32-33. See generally GAO, Issues Surrounding Increased Use of the Military in Drug Interdiction (1988) (overview of military support for drug enforcement and claims of its inability to contribute significantly to stopping drugs from entering the country). A key multi-agency effort in the war on drugs is the Organized Crime Drug Enforcement Task Force Program, which began as a prototype in South Florida in 1982 and was expanded to twelve additional cities later that year. Under the direction of federal prosecutors, the task forces coordinate federal, state and local resources in targeting high level drug trafficking groups. NDEPB, Federal Drug Enforcement Progress Report 1984-86 43-47 (1986). Another new resource is the National Narcotics Border Interaiction System (NNBIS), a network of communications centers formed in 1983 to process data on suspicious ships and planes in border areas. The Office of the Vice-President supervises NNBIS. Wisotsky, supra, at 91, 98-99. 142. 18 U.S.C. 2510-20 (1982, Supp. 11 1984, Supp. III 1985 & Supp. IV 1986); see S. Wisotsky, supra note 141, at 75-76, 126-27. 143. Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91513, 84 Stat. 1236 (1970) (codified as amended principally in scattered sections of 18, 21, 26 and 42 U.S.C. (1982, Supp. I 1983, Supp. II 1984, Supp. 11 1985 & Supp. IV 1986)).
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Enterprise (CCE) and Racketeer Influenced Corrupt Organization (RICO) laws passed in 1970 targeted large drug organizations that " CCE and RICO drug prosecutions commit a series of violations. 5
spiraled in the 1980s.14
The 1980s saw regular expansions of the drug enforcement arsenal. Congress created exceptions to the Posse Comitatus Act in 1981 to allow the Army, Air Force and Navy to assist drug enforcement officers with intelligence, surveillance, and logistical aid.146 Subsequent legislation allowed Navy ships to carry Coast Guard boarding parties during routine patrols in areas frequented by
smugglers. 47
Congress further bolstered the legal tools for drug prosecutions in the Comprehensive Crime Control Act of 1984, hailed as a wish list by the federal drug enforcement community. 1 8 One of the Crime Act's more draconian features, the Bail Reform Act, has resulted in pretrial detention for thousands of accused drug violators who previously would have received bail. Defendants charged with drug crimes carrying sentences of ten years or more are presumed dangerous and must be incarcerated before trial, unless the defendant can rebut this presumption at a hearing. "
144. Continuing Criminal Enterprise Act, Pub. L. No. 91-513, 408, 84 Stat. 1265 (1970) (codified as amended at 21 U.S.C. 848 (1982, Supp. 111984, Supp. III 1985 & Supp. IV 1986)). Racketeer Influenced Corrupt Organization Act, Pub. L. 91-452, 901(a), 84 Stat. 941 (1970) (codified as amended at 18 U.S.C. 1961-1968 (1982, Supp. 1 1983, Supp. II 1984, Supp. III 1985 & Supp. IV 1986)). 145. S. Wisotsky, supra note 141, at 68, 67. 146. Pub. L. No. 97-86, 905(a)(1), 95 Stat. 1114-16 (1981) (codified as amended at 10 U.S.C. 371-378 (1982, Supp. 11 1984, Supp. III 1985 & Supp. IV 1986)). See generally Note, The Navy's Role in Interdicting Narcotics Traffic: War on Drugs or Ambush on the Constitution? 75 Geo. L.J. 1947 (1987)(discussing Constitutional and statutory values threatened by growing Naval involvement in drug enforcement). 147. National Drug Interdiction Improvement Act of 1986, Pub. L. No. 99-570, 3053(b)(1), 100 Stat. 3207-75 (1986) (codified at 21 U.S.C. 801 (Supp. IV 1986)). Development of Congress's 1988 election year antidrug legislation saw Senate passage on an 83-to-6 vote of legislation to expand military involvement in drug enforcement, including authority to arrest suspects and conduct border searches. Adams, Second Thoughts on the Military as Narcs, Washington Post, June 15, 1988, at A21, col. 1. Skepticism about the effectiveness and propriety of such measures led Congress to revoke these extreme provisions. Rasky, Military Role in Drug War, N.Y. Times, June 24, 1988, at B4, col. 6. 148. Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976 (1984) (codified as amended principally in scattered sections of 18, 21 and 42 U.S.C. (Supp. III 1985 & Supp. IV 1986)) [hereinafter 1984 Crime Act]. 149. 18 U.S.C. 3142(e) (Supp. II 1984). Like much drug policy, empirical evidence does not support the rationale of the law. Congress decided that vast numbers of accused drug dealers commit crimes while awaiting trial, contrary to the findings of numerous studies. See Hansen, When Worlds Collide: The Constitutional Politics of United States v.
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The 1984 Crime Control Act capped fifteen years of expanding asset forfeiture laws and enshrined forfeiture as a cornerstone of drug law enforcement.15 0 Basically, civil forfeiture provisions now allow the government to seize upon probable cause all assets, including real estate, that are traceable proceeds of drug transactions or are used to facilitate drug transactions. An arrest for a criminal offense is not required. Innocent parties whose property is used in drug transactions generally have no defense to civil forfeiture. Parties who receive drug proceeds in transactions without knowledge of the source of the assets can successfully contest forfeiture. Criminal forfeiture requires a convicted defendant to disgorge traceable proceeds upon conviction and like civil forfeiture, it strikes at assets held by third parties who cannot show innocent ownership by a preponderance of evidence. The 1984 Crime Act mandated criminal forfeiture for all defendants convicted of felony drug violations and generally expanded civil forfeiture. 5 The DEA and cooperating agencies made record forfeiture seizures totalling $506 million in 1987, exceeding the DEA's budget of $490 million for 1987.152 The boom in forfeiture actions by
Salerno, 14 Am. J. Crim. L. 155, 213-18 (1987). This raises due process questions about the mandatory presumption. Note, When Preventive Detention Is (Still) Unconstitutional, 61 S. Cal. L. Rev. 1091 (1988). But cf. United States v. Jessup, 757 F.2d 378, 386-87 (lst Cir. 1985) (less searching due process analysis should be applied to a presumption used in a preliminary hearing). 150. In 1970, Congress subjected drugs and conveyances for them to civil forfeiture and also passed the nation's first criminal forfeiture law, applicable to CCE and RICO profits. Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, , 408(2), 511, 84 Stat. 1236 (1970) (codified as amended at 21 U.S.C. 848, 881 (1982, Supp. II 1984, Supp. III 1985 & Supp. IV 1986)); Organized Crime Control Act of 1970, Pub. L. No. 91-452, 1963(a), 84 Stat. 943 (1970) (codified as amended at 18 U.S.C. 1963 (1982, Supp. II 1984, Supp. III 1985 & Supp. IV 1986)). In 1978, civil forfeiture was expanded to include all proceeds traceable to drug transactions. Pub. L. No. 95-633, 301, 92 Stat. 3768, 3777 (1978) (codified as amended at 21 U.S.C. 881, 965 (1982, Supp. 11 1984, Supp. III 1985 & Supp. IV 1986)). 151. Comprehensive Forfeiture Act of 1984, Pub. L. No. 98-473, 301-323, 98 Stat. 2040-57 (1984) (codified as amended principally in scattered sections of 18, 19 and 21 U.S.C. (Supp. III 1985 & Supp. IV 1986)). Prosecutors contemplating criminal forfeiture can now obtain restraining orders on transfers of assets by suspects, even prior to indictment. 21 U.S.C. 853(e) (Supp. III 1985 & Supp. IV 1986). The government's aggressive use of criminal forfeiture statutes has extended to seeking forfeiture of fees paid to defense attorneys. See United States v. Harvey, 814 F.2d 905 (4th Cir. 1987) (forfeiture of attorney's fees violates Sixth Amendment right to counsel of choice), rev'd en banc sub. nom. In re Forfeiture Hearing as to Caplin & Drysdale, 837 F.2d 637 (4th Cir. 1988), petition for cert. filed, 56 U.S.L.W. 3739 (U.S. April 11, 1988) (No. 871729). 152. Jennings, 'Poetic Justice' Against Drugs, Washington Post, June 20, 1988, at Al,
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federal and state agencies promises to offset some of the soaring law enforcement budgets, but the volume of illegal assets and the subterfuge available for their concealment ensure that forfeiture will not be a panacea for drug law enforcement.8 3 Forfeiture will merely swell further the drug enforcement bureaucracy, and the government's zealous pursuit of forfeiture actions against boats and cars found with small amounts of marijuana has triggered a rare public disapproval of federal drug policy."" In 1986 the legislative pace quickened with the $3.93 billion Anti-Drug Abuse Act of 1986,155 passed by a nearly unanimous Congress mesmerized over the emergence of crack and rising co6 Marijuana was also caine abuse."" targeted, as the legislative onslaught against drugs has largely abandoned old distinctions between marijuana and hard drugs such as cocaine and heroin. 5 ' The 1986 Act belatedly budgeted over one billion dollars for drug treatment and prevention programs, erasing the decreases in federal spending for these programs in the 1980s. " The bulk of spending went for massive increases of law enforcement budgets, including
col. 5. 153. S. Wisotsky, supra note 141, at 80-81. 154. Concerning the government's enthusiasm over making drug enforcement self-financing, see DEA, Drug Agents' Guide to Forfeiture (1987 Revision) 1 (1987) ("Law enforcement has the potential, through forfeiture, of producing more income than it spends. . . .The long-range implications are enormous."). The government's "zero-tolerance" policy in 1988, under which automobiles and boats harboring trace amounts of drugs were seized, has come under stinging criticism. See Isikoff, Panel Seeks to Restrict 'Zero-Tolerance' Property Seizures, Washington Post, June 22, 1988, at A3, col. 1; Nordheimer, Controversy Surrounds Policy of Seizing Boats in Drug Hunt, N.Y. Times, May 22, 1988, at Al, col. 2. The 1984 Crime Control Act also toughened penalties for possession and distribution of marijuana and other drugs. 1984 Crime Act, 502-504 (codified as amended at 21 U.S.C. 841, 845, 960 (Supp. 11 1984, Supp. 11 1985 & Supp. IV 1986)). Congress also disallowed conditional discharges for those arrested for possession of small amounts of marijuana under federal law, thus saddling the offender with a misdemeanor arrest and conviction record. 1984 Crime Act, 219(b) (codified as amended at 21 U.S.C. 844 (Supp. II 1984 & Supp. III 1985)), repealed by Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 1052, 100 Stat. 3207 (1986). 155. Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986) (codified as amended principally in scattered sections of 19, 21 and 42 U.S.C. (Supp. IV 1986)); Kerr, supra note 122. 156. A. Trebach, supra note 50, at 1-15, 153. 157. Cowan, supra note 125, at 27-28. 158. GAO, Reported Federal Drug Abuse Expenditures - Fiscal Years 1981 to 1985 at 3 (1985) (Actual outlays for drug abuse prevention and treatment programs declined 16% from 1981 to 1985, while drug law enforcement increased 72%); See Weinraub, Reagan's Cuts in Anti-Drug Effort Bring Outburst at Senate Hearing, N.Y. Times, Jan. 30, 1987, at B9, col. 1.
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1 59 more personnel, equipment and prisons. The 1986 Act restored mandatory federal prison sentences for large scale marijuana distribution, which had been removed in the 0 Congress also decreed a mandatory $1,000 minimum fine 1960s. 16 for persons convicted of possession of less than one ounce of marijuana.11 The lawmakers imposed tough new sanctions on money laundering, coinciding with expanded Treasury Department regulations requiring that all cash transactions over $10,000 be reported.16 2 Assorted other sections of the Act directed the Forest Service to create a drug police force, repealed the 1961 Mansfield
159. Weinraub, In Reagan's Drug War, Congress Has The Big Guns, N.Y. Times, Mar. 15, 1987, at E5, col. 1. In fiscal year 1987, drug prevention and treatment programs received approximately 25% of the federal drug budget, up from 17% in 1986. GAO, supra note 135, at 14. 160. 1986 Anti-Drug Abuse Act, 1002 (codified at 21 U.S.C. 841 (Supp. IV 1986). Prior to the 1986 Act, persons convicted of drug offenses in federal courts served an average sentence of just under two years. This average was projected to increase to over four years under the 1986 Act. The new sentences mandated by the U.S. Sentencing Commission for crimes committed after October of 1987 will increase the average time served by those convicted to just under six years. Prior to the new sentencing guidelines, 21% of convicted drug offenders received a sentence of probation only; the Commission forecasts its guidelines will reduce probation sentences to 5% of drug convictions. United States Sentencing Commission, Supplementary Report on the Initial Sentencing Guidelines and Policy Statements 6869 (1987). An example from the lower end of the Guidelines suffices to show their harshness. A person convicted of growing four marijuana plants must now serve a minimum of two months in prison. U.S. Sentencing Commission, Sentencing Guidelines and Policy Statements 2.32, 5.2 (1987). 161. 1986 Anti-Drug Abuse Act, 1052 (codified at 21 U.S.C. 844 (Supp. IV 1986)). The 1986 Act restored the prerogative of federal judges to conditionally discharge first-time possessors of small amounts of marijuana. Second offenders receive a mandatory 15 day prison sentence. Id. The 1986 Act also contained a resolution against states decriminalizing drug possession. In tune with Congress, the National Drug Enforcement Policy Board has called for the recriminalization of marijuana in the eleven decriminalized states "because the decriminalization of marijuana possession undermines the standard of the unacceptability of drug use." NDEPB, supra note 123, at 149. The NDEPB was renamed the National Drug Policy Board in March of 1987 when it received the responsibility of coordinating federal drug prevention and treatment, in addition to overseeing enforcement. It has been roundly criticized for failing to referee turf battles between enforcement agencies and for being a poor substitute for a centralized cabinetlevel drug enforcement and treatment bureaucracy. See House Comm. on Gov't Operations, The National Drug Policy Board: A Failure in the War on Drugs, H.R. Rep. No. 184, 100th Cong., 1st Sess. (1987). 162. See 1986 Anti-Drug Abuse Act, 1351-1367 (codified in scattered sections of 12, 18 and 31 U.S.C. (Supp. IV 1986)); Strasser, Hiding Money Gets Tougher, Nat'l Law J., Nov. 3, 1986, at 1, col. 1. Defense lawyers are also subject to the requirement of filing these Cash Transaction Reports (CTRs), raising ethical dilemmas about exposing client secrets. Strasser, supra, at 46, col. 1.
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Amendment to allow American officers to assist foreign arrests, and added colleges to the "school yard statute," which doubles penalties for drug offenses committed within one thousand yards of a school. " In 1988, Congress began preparation of another election-year anti-drug bill, focusing on fining drug users and depriv4 ing them of access to federal programs.1
C. THE JUDICIAL HELPING HAND
The federal judiciary joined Congress and the executive branch in facilitating drug investigations, arrests and prosecutions in the 1970s and 1980s. 165 The Supreme Court, while not always siding with the government on drug cases, has validated many of the new tools of drug agents. Airport drug courier profiles allowing the stopping and questioning of citizens fitting vague criteria for smugglers have passed constitutional muster,' as have dog sniffs for drugs in a traveller's luggage. 67 The Supreme Court in drug cases has loosened standards for obtaining warrants,1 6 conducting electronic surveillance, 6 9 searching ships 70 and automobiles' 7' and
163. See NDEPB, supra note 123, at 79, 189-200 (overview of the Anti-Drug Abuse Act and the elimination of Mansfield Amendment barriers). Shabecoff, U.S. Unveils Plan to Curb Marijuana Boom in Nation's Forests, N.Y. Times, Oct. 31, 1986, at A12, col. 1 (report on new law enforcement efforts in National Forests). Early versions of the Anti-Drug Abuse Act provided for the death penalty for certain drug offenses and allowed illegally obtained evidence to be used in court for drug cases. Greenhouse, Drug War vs. the Deficit: The Senate Blinks, N.Y. Times, Oct. 2, 1986, at A24, col. 1. 164. Congressional leaders and President Reagan in the summer of 1988 proposed a range of punitive measures against those convicted of possession of a controlled substance, including fines scaled to income and denials of student loans. Proposals included conditioning aid to states on the adoption of laws criminalizing marijuana possession and suspending the driver's license of anyone convicted of a drug possession offense. See Dewar & Isikoff, Differing National Anti-drug Proposals Unveiled, Washington Post, July 1, 1988, at A7, col. 1; McCollum, Sanctions - Against Those Who Use Drugs, Washington Post, June 30, 1988, at A19, col. 3. 165. Wisotsky, Crackdown: The Emerging "Drug Exception" to the Bill of Rights, 38 Hastings L.J. 889, 907-10 (1987). As early as 1970, Justice Hugo Black, no friend of illegal drugs or expansive fourth amendment jurisprudence, made this trenchant observation: "Unfortunately, grave evils such as the narcotics traffic can too easily cause threats to our basic liberties by making attractive the adoption of constitutionally forbidden shortcuts that might suppress and blot out more quickly the unpopular and dangerous conduct." Turner v. United States, 396 U.S. 398, 427 (1970) (dissenting opinion). 166. Florida v. Royer, 460 U.S. 491, 498 (1983). 167. United States v. Place, 462 U.S. 696, 706-07 (1983). 168. Illinios v. Gates, 462 U.S. 213, 230 (1983)("totality of the circumstances" test for evaluating an undisclosed informant's tip as a basis for probable cause for a warrant). 169. United States v. Knotts, 460 U.S. 276, 284-85 (1983) (allowed warrantless tracking of suspects through transmitter in container in vehicle).
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72 saving evidence from exclusion. 1 7 and ground searches for marijuana in Warrantless aerial 1 174 75 fields and barns surrounding homes also have received the Court's approval. In a related erosion of constitutional safeguards, courts have sanctioned the escalating practice of haling drug defense lawyers before grand juries to divulge their clients' fee arrangements and even factual information concerning their 76 clients. The enforcement of drug laws has brought a vast expansion of secret police personnel and tactics. The consensual nature of drug crimes necessitates undercover agents, paid informants, and covert surveillance. These law enforcement methods that blur the distinctions between police and criminals have jeopardized civil liberties 77 and concepts of limited police powers to an unparalleled extent. Viewed individually, each increase in police resources, criminal laws, and constitutional flexibility might be justifiable apart from the war on drugs hysteria that has spawned many of these measures. Yet the aggregate picture of the last twenty years, and especially the 1980s, is the emergence of an ever-expanding criminal
170. United States v. Villamonte-Marquez, 462 U.S. 579, 593 (1983) (suspicionless boarding of ships in inland waterways). 171. United States v. Ross, 456 U.S. 798, 821 (1982) (searching cars and closed containers therein on probable cause); United States v. Sharpe, 470 U.S. 675, 688 (1985) (stopping, questioning, and detaining drivers on less than probable cause). 172. United States v. Leon, 468 U.S. 897, 905 (1984) (exception to exclusionary rule for search made in good faith reliance on a warrant issued without probable cause). 173. California v. Ciraolo, 476 U.S. 207, 214 (1986). But cf. Riley v. State, 511 So.2d 282, 286 (Fla. 1987) (holding unconstitutional a warrantless aerial observation into a backyard from a helicopter hovering at 400 feet and distinguishing Ciraolo as involving a flyover by a fixed wing aircraft in public navigable airspace), cert. granted, 108 S.Ct. 1011 (1988). 174. Oliver v. United States, 466 U.S. 170, 181 (1984). 175. United States v. Dunn, 107 S.Ct. 1134 (1987). Cf. California v. Greenwood, 108 S.Ct. 1625 (1988) (upholding warrantless search and seizure of bagged garbage left for collection outside the curtilage of the home). 176. Wisotsky, supra note 165, at 902-03. See generally Zeese, No More Drug War, Nat'l L.J., July 7, 1986, at 13 (survey of 1,648 criminal defense attorneys showed that 24% of the drug specialists had been subpoenaed to testify against their clients). 177. See A. Hellman, Laws Against Marijuana: The Price We Pay 57-168 (1975); S. Wisotsky, supra note 141, at 74-75, 130-32, 137-38; Gieringer, Inside the DEA, Reason, Dec. 1986, at 22. For an example of undercover drug enforcement work by private agencies hired by local police, see Burrough, Drug Detective's Stint Blends Risk, Dilemmas, Ennui, Wall St. J., Mar. 20, 1987, at 1, col. 1. The growth of police power and abuses is spurred by the vested interest the drug enforcement community has in encouraging public concern over drugs, and the media's frequent reliance on the police for information. See P. Manning, The Narcs' Game 256-59 (1980).
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justice system for drugs fundamentally at odds with principles of liberty and limited police powers. 7 8 Moreover, additional cops, criminal codes, and compliant courts have only succeeded in jamming prisons, 17 9 clogging courts, and engendering the most wide0 Despite the spread police corruption since alcohol prohibition. s boom in drug arrests' 81 and incarceration, marijuana remains widely available at reasonable prices. 8 ' A criminal justice system stretched to new lengths of social control faces an unbeatable opponent in a marijuana industry that has proven as resilient as the hardy weed itself.
VIII. THE ELUSIVE MARIJUANA PLANT The size of the international cannabis industry, while giving
rise to seemingly impressive drug enforcement victories, has frustrated efforts to keep marijuana from the tens of millions of
178. Zeese, supra note 176; Wisotsky, supra note 165, at 909-10, 921-26. 179. The total state and federal prison population has more than doubled since 1977, reaching 581,609 inmates at the beginning of 1988. Applebome, With Inmates at Record High, Sentence Policy is Reassessed, N.Y. Times, April 25, 1988, at Al, col. 4; see also Bureau of Justice Statistics, Dep't of Just., Bulletin: Probation and Parole 1986 4 (1987). In addition to the prison population, convicted and unconvicted adults in jails totaled 273,000 inmates in 1986. Bureau of Justice Statistics, supra. Over one-third of federal inmates are incarcerated for drug offenses. NDEPB, supra note 123, at 17. The federal prison population, numbering 47,000 inmates in 1987, is projected to grow to between 92,000 and 118,000 inmates by 1997. U.S. Sentencing Commission, Supplementary Report, supra note 160, at 71, 73. 180. See generally Shenon, Enemy Within: Drug Money is Corrupting the Enforcers, N.Y. Times, April 11, 1988, at Al, col. 5 (money of traffickers and police perceptions of public ambivalence about drug law enforcement have corrupted law enforcement at all levels throughout the country); Kerr, Drug Court Cuts New York Backlog, N.Y. Times, Feb. 6, 1988, at Al, col. 1 (courts established to handle drug cases exclusively due to a 159% increase in felony drug arrests between 1985 and 1987); Bruske, D.C. Judges Find Loopholes to Ease Drug Punishment, Washington Post, May 13, 1986, at Al, col. 1 (faced with mandatory sentencing provisions for drug traffickers, judges seek ways to circumvent an illadvised statute). 181. Annual drug arrests nationwide reached 824,000 in 1986, a 30% increase over 1982. Cocaine accounted for the bulk of the surge in arrests. In 1986 marijuana arrests dipped below 400,000 for the first time in the 1980s, and for the first time since record keeping began in the 1960s, marijuana arrests constituted less than 50% of all drug arrests. Marijuana arrests, however, remain larger than cocaine and heroin arrests combined. See Federal Bureau of Investigation, Uniform Crime Reports - Crime in the United States 163-64 (1987). 182. See supra note 135 and infra notes 208, 238, and accompanying text. Law enforcement against marijuana has proven unsuccessful even when narrowly focused on particular retail markets. Kerr, War on Drugs Shifting Focus to Street Deals, N.Y. Times, April 13, 1987, at Al, col. 5; Kerr, A Portrait of Washington Square Park: Inside a Drug Bazaar, N.Y. Times, Jan. 12, 1987, at B1, col. 2.
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Americans who want it.183 The big sunlit fields preferable for largescale commercial marijuana farming and the logistics of transporting bulky bales of the weed to American wholesalers makes cannabis much more susceptible to detection than powders like cocaine and heroin. Unlike the coca bush and the opium poppy, however, cannabis is a prolific plant that grows around the globe with little work and commands the largest market of illegal drugs. Aggressive American-backed marijuana suppression efforts worldwide could not prevent a 25% increase in global production in 1987.184 A.
STAYING MANY STEPS AHEAD: CHANGES IN SOURCES AND SMUGGLING
Inroads made against Colombia's marijuana production in the mid-1980s ranks as one of the most successful American drug enforcement operations. Operation Hat Trick I in the fall of 1984 placed a blockade of Coast Guard and Navy vessels off Colombia's Caribbean coast for sixty days at the height of the marijuana harvest. United States authorities intercepted 100,000 pounds of cannabis, and shore-based Colombian police swept in to destroy much of the harvest that was being stockpiled during the blockade."'5 The expanding American presence in the Caribbean, combined with vigorous Colombian programs on shore, apparently has eroded Colombia's position in the American marijuana market."" Jamaica and the Central American nation of Belize nevertheless helped offset Colombia's shortfall by exporting significant amounts of marijuana to the United States in the 1980s.187 Jamaica
183. See supra notes 135, 182 and infra notes 208, 238 and accompanying text. 184. BINM, International Narcotics Control Strategy Report 10 (1988). 185. President's Commission on Organized Crime, America's Habit: Drug Abuse, Drug Trafficking and Organized Crime 307-08 (1986) [hereinafter PCOC]. 186. NNICC, supra note 135, at 15-16 (Colombia's market share declined from 42 to 27% between 1984 and 1986); GAO, Drug Control 45 (1987). But cf. BINM, supra note 184, at 10-11, 35 (marijuana production in Colombia increased in 1987). See generally Reuter, The Continued Vitality of Mythical Numbers, Pub. Interest, Spring 1984, at 135, 143-46. (Government attempts to estimate the sources and amounts of illegal drugs entering the United States are fraught with guess work and may be influenced by political considerations). Colombia has suffered extensive crime and civil unrest in its efforts to stem drug exports, see Riding, Colombians Grow Weary of Waging the War on Drugs, N.Y. Times, Feb. 1, 1988, at Al, col. 2, and some Colombians have broached the idea of legalizing marijuana and cocaine. Samper, Who Created the Drug Trafficking Monster, N.Y. Times, Jan. 25, 1987, at E3, col. 1; Rodriguez, Drugs, Death, and Fear in Colombia, Washington Post, Jan. 6, 1987, at A21, col. 1. 187. PCOC, supra note 185, at 137; NDEPB, supra note 141, at 149-53.
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[21:417
has long been a cannabis growing, consuming, and moderate-sized exporting nation. The emergence of Belize as a substantial exporter in the 1980s caught American officials by surprise, an episode indicative of the ever-shifting sources of cannabis production."'8 Yet production and exports from both nations apparently suffered in the mid-1980s from intensified domestic and American enforcement.189 Escalating American air and border defenses in the Caribbean and the Pacific challenged the ability of smugglers to move marijuana-laden "mother ships" to positions off the United States coast to rendezvous with smaller "contact boats" that make the final run to shore.1 90 Smugglers committed to water delivery adopted varying tactics - plying a wider course eastward toward Barbados, meeting contact boats in the Bahamas, airdropping marijuana bales to contact boats, hiding cargoes, and reconnoitering the smuggling route.' 9' The relatively heavily defended South Florida coast lost popularity as a destination for marijuana smugglers. Some cannabis smugglers shifted to smaller loads aboard airplanes or switched to the more lucrative cocaine trade.19 Drug enforcement pressure in the Caribbean contributed to Mexico's re-emergence as possibly the primary marijuana supplier to the United States, thus illustrating the fluidity of international cannabis production. Mexico lost much of its share of the American marijuana market to Colombia in the late 1970s whenthe application of herbicides to Mexican marijuana prompted concern among American consumers of dangers from smoking contaminated Mexican marijuana. 9 3 In the mid-1980s, however, Mexico has resumed leadership in supplying the American marijuana
188. PCOC, supra note 185, at 137. 189. DEA, Cannabis Review 1985, The Quarterly 2, 3-4 (1986); Long, Village Economies Hurt in Jamaica's War on 'Ganga', Los Angeles Times, Aug. 18, 1986, at 1, col. 1. Jamaican marijuana traffickers nevertheless managed to boost production in 1986. BINM, supra note 140, at 18. 190. U.S. Coast Guard Operational Law Enforcement Division, U.S. Coast Guard Drug Interdiction Mission A-5 (Oct. 23, 1986) (U.S. Coast Guard press release). 191. Id. at A-12, A-13. 192. Brinkley, 4-year Fight in Florida - 'Just Can't Stop Drugs', N.Y. Times, Sept. 9, 1986, at Al, col. 2; Kerr, Drug Patrol Begins Off L.I. Shore, N.Y.Times, April 25, 1986, at B1, col. 1. 193. See NDEPB, supra note 116, at 3-4, 14; PCOC, supra note 185, at 135-36. See generally R. Warner, Invisible Hand: The Marijuana Business (1986) (journalistic account of the foreign and domestic marijuana trade in the 1970s and 1980s). For a discussion of herbicidal eradication, see Part B infra.
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market. 9 "
Mexico also has become a conduit for marijuana and cocaine from other Central and South American producers.' 95 From whatever source, marijuana crosses the relatively porous MexicanAmerican border. Vehicles carry concealed marijuana through United States Customs, prompting traffic-snarling delays for inspections. Small planes jump across the Mexico-United States border from makeshift desert airstrips. Further, illegal aliens sometimes backpack substantial amounts of marijuana when they cross the border. 96 Thailand, Panama, Costa Rica, Guatemala and a few other nations have supplied limited amounts of marijuana to the United States in the 1980s.197 Cannabis cultivation in Thailand expanded rapidly in the mid-1980s. 95 Lebanon, Afghanistan, and Pakistan remained the primary sources for hashish in the United States.'99 Altogether in 1986, law enforcement intercepted 2,310,000 pounds of marijuana bound for the United States, an estimated 10% of the cannabis exported to the country.200
194. BINM, supra note 184, at 16. In late 1984, Mexican officials destroyed a network of five sophisticated marijuana plantations producing roughly 2,000 metric tons of marketable marijuana. This one seizure greatly exceeded the amount of marijuana previously thought to have been grown in all of Mexico. PCOC, supra note 185, at 147. See generally Mexico - A Profile, Drug Enforcement, Summer 1985, at 12-16 (irregular magazine of DEA) (description of Chihuahua seizure). United States drug enforcement leaders have continually blamed official corruption in Mexico for contributing to the resurgence of heroin and marijuana production in the country. See Stockton, In the Drug Capital of Mexico, Top Suspect is the Governor, N.Y. Times, May 22, 1986, at Al, col. 1; Thornton, Mexico Strongly Protests Corruption Allegations, Washington Post, May 16, 1986, at A30, col. 5; Brinkley, U.S. Finds Mexico Source of Most Heroin and Marijuana, N.Y. Times, Feb. 21, 1986, at A3, col. 2. 195. Rohter, Mexico Battles Drugs Anew; Says War Is Far From Over, N.Y. Times, June 15, 1987, at Al, col. 5. 196. NDEPB, supra note 123, at 159; Jolidon, 5 Men, Dog in Texas Just Not Enough, USA Today, May 14, 1986, at Al, col. 3. See generally P. Adler, Wheeling and Dealing: An Ethnography of an Upper-Level Drug Dealing and Smuggling Community (1985) (smuggling and selling Mexican marijuana in a southwestern United States community in the 1970s). 197. NNICC, supra note 135, at 19-20. Brazil in 1986 also began to emerge as a cannabis exporter. BINM, supra note 140, at 13. 198. See NNICC, supra note 135, at 20; Drug Traffickers Turn to Thailand, N.Y. Times, Sept. 7, 1986, at A4, col. 1. 199. NNICC, supra note 135, at 21-25. 200. Id. at 9-10. The DEA confiscated an additional 1,820,000 pounds of marijuana inside the United States in 1986. Bureau of Justice Statistics, supra note 153, at 326.
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[21:417
B.
PROHIBITION'S HYPOCRISY: SPRAYING MARIJUANA WITH POTENTIALLY TOXIC HERBICIDES
Attempts to destroy cannabis plants in source countries with chemical defoliants play a large role in United States drug strategy in the 1980s, despite the risks to the health of American marijuana smokers and the limited effectiveness of these programs. Colombia, Mexico, Belize, Panama, Jamaica, Guatemala, and Costa Rica receive extensive financial assistance from the United States in ap01 Herbicidal eradication of plying herbicides to marijuana crops.2 marijuana has accelerated in the 1980s in disregard of strong warn0 2 and concerns of some governings from the medical community2 ment officials involved in the effort.20 8 Spraying herbicides on foreign marijuana in the 1980s has attracted little public attention, in contrast to the outcry over the use of defoliants in Mexico in the late 1970s and in the United States in scattered sprayings in the 1980s. The appearance of paraquat-contaminated marijuana in the United States and attendant public concern prompted Congress in August of 1978 to adopt the Percy Amendment, which prohibited government support for spraying herbicides on foreign marijuana if the practice posed a serious risk to consumers of the sprayed cannabis. The Department of Health, Education and Welfare
201. NNICC, supra note 135, at 12, 17-19; BINM, supra note 140, at 4, 15. Mexico has encountered serious difficulties in sustaining an herbicidal eradication program because of mechanical problems in servicing the aircraft which apply the chemicals and corruption among pilots. Stockton, Mexico's Battle Against Drugs: Strong Obstacles Described, N.Y. Times, May 17, 1986, at A2, col. 3; GAO, Drug Control: U.S. - Mexico Opium Poppy and Marijuana Aerial Eradication Program 43 (1988). Marijuana farmers can also compromise aerial eradication programs by planting smaller plots and moving them to inaccessible areas. Going to Pot: Marijuana Cultivation on Public Lands and the Federal Response, H. Rep. No. 454, 100th Cong., 1st Sess. 6 n.16 (1987). 202. Herbicides require some time to kill a plant, thus allowing growers who are determined to save their crops an opportunity to harvest the cannabis before the herbicide acts. As chemical eradication programs expand, the possibility of contaminated marijuana reaching consumers and causing lung damage grows. See Landigran, Powell, James & Taylor, Paraquat and Marijuana: Epidemiologic Risk Assessment, 73 Am. J. Pub. Health 784, 788 (1983). See generally IOM, supra note 15, at 187 ("Continued exposure to inhaled paraquat is likely to be harmful to the lungs."); Fox, Herbicide Glyphosphate Considered at DEA for Marijuana Eradication, U.S. Medicine, Feb. 1, 1985 at 24 (discussing concerns over defoliants glyphosphate and 2, 4-D); Hollister, supra note 57, at 11, 17 ("Contamination of marijuana by spraying with defoliants has created the clearest danger to health .... Paradoxically, this hazard stem[s] from efforts to save cannabis users from less well-documented hazards to their health."). 203. The State Department in 1987 reported worries among U.S. officials over herbicidal contamination in samples of seized Colombian marijuana headed for the United States. BINM, supra note 140, at 29.
19881
subsequently determined that such a threat existed, and the United States terminated support for the Mexican paraquat program." 4 In late 1981, however, Congress repealed the Percy Amendment and again authorized spending for herbicide eradication programs abroad. 0 5 The new legislation directed the government to monitor potential harm to marijuana smokers from the herbicidal 0 6 The State Department issued an encontamination of the drug.2 vironmental impact statement in 1982 on herbicidal eradication, in which it concluded that the lack of diagnosed victims of paraquattainted marijuana dictated that the government pursue the purportedly greater public health priority of attempting to reduce the marijuana supply. 0 7 The unstoppable flow of tens of millions of pounds of marijuana into the United States,0 8 however, exposes the rationale of this aspect of prohibition as malevolence towards citizens the government deems criminals.
IX.
THE NEW SUPPLY PARADIGM: AMERICAN MARIJUANA
The rise of commercial cannabis cultivation in the United

204. Pub. L. No. 95-384, 3-4, 92 Stat. 730 (1978) (codified at 22 U.S.C. 2291 (Supp. 111978)), repealed by Pub. L. No. 97-113, 502(a)(1), 95 Stat. 1538-39 (1981) (codified at 22 U.S.C. 291 (1982)). See generally National Org. for Reform of Marijuana Laws v. United States Dep't of State, 508 F. Supp. 1 (D.D.C. 1979) (discussing implementation of Percy Amendment). 205. Note, Paraquat Eradication: Legal Means for a Prudent Policy? 12 B.C. Envtl. Aff. L. Rev. 491, 504 (1985). 206. Pub. L. 97-113, 502(a)(1), 95 Stat. 1538-39 (1981) (codified at 22 U.S.C. 2291 (1982)). 207. U.S. State Dep't, Cannabis Eradication in Foreign Western Hemisphere Nations 6 (1982), cited in Note, supra note 205, at 497-498. 208. The government acknowledges the resilience of the international cannabis industry. In the late summer of 1986, the DEA noted a surge in marijuana prices in most American markets. It stated that this was expected, "for spot shortages have historically been reported prior to the harvesting of the largest of the bi-annual crops in both Mexico and Colombia." DEA, 1986 Domestic Cannabis Eradication/Suppression Program Final Report 24 (1986). The State Department concluded that "marijuana imports marginally increased" in 1986. BINM, supra note 140, at 30. In 1987, by contrast, the government estimated that worldwide marijuana production increased by one-quarter and that availability of the drug increased nationwide. See supra note 184 and accompanying text; DEA, 1987 Domestic Cannabis Eradication/Suppression Program Final Report 21-22 (1987). A former Justice Department drug policy analyst concluded that doubling federal marijuana enforcement from the levels of the early 1980s would produce at best a 20% increase in the retail price of marijuana. M. Kleiman, supra note 75, at 84, 116. Other researchers have come to similar conclusions - the size of the marijuana market renders it relatively insensitive to massive law enforcement efforts. J. Polich, P. Ellickson, P. Reuter & J. Kahan, supra note 115, at ii.
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[21:417
States in the 1980s has added a unique domestic front to the government's battle against drug production and rendered prohibition a more impossible goal. Marijuana farming in all fifty states has triggered extensive police efforts from all levels of government, making surveillance aircraft a common sight in some rural communities. Like their counterparts abroad, American marijuana farmers have proven themselves adept at dodging aggressive police tactics and growing bountiful cannabis crops that have made the United States a major marijuana producer.
A.
"THE LEADING EDGE OF A HORTICULTURAL REVOLUTION:"
2 09
GROWTH AND INNOVATION IN THE AMERICAN MARIJUANA INDUSTRY
Domestic cannabis production was negligible before the late 1970s and was largely confined to California and Hawaii.21 Widespread publicity concerning paraquat-tainted Mexican marijuana in 1978 and years following, however, created a strong demand for uncontaminated cannabis and inspired widespread American marijuana farming. 211 The DEA extended federal assistance to Hawaii and California in 1979 to fight marijuana cultivation and by 1985 all fifty states participated in a national program that includes training, intelligence, and logistical support. 12 The American marijuana industry has nonetheless confounded all efforts to contain it, and this multi-billion dollar business21 may account for as much as 50% of the domestic cannabis market.2" In 1982, all levels of government eradicated 38% more
209. DEA, Special Report: Domestic Marijuana Trafficking 1984 7 (1985). 210. NDEPB, supra note 116, at 15. 211. Id. Increasing law enforcement pressure on foreign exports of marijuana has helped sustain the rise of domestic cannabis. Going to Pot, supra note 201, at 6. 212. NDEPB, supra note 116. 213. Going to Pot, supra note 201, at 4 n.7 ("Even the most conservative estimates place the wholesale value of [domestic] marijuana in the billions of dollars."). 214. The share of the American marijuana market held by domestic cannabis is the subject of controversy, as the official government drug intelligence source, the NNICC, clung to an estimate of between 10% and 15% despite the government's vast underestimate in 1982. See text accompanying note 215. The National Organization for the Reform of Marijuana Laws estimated a 50% share for domestic marijuana in 1986. J. Gettman, Marijuana in America - 1986 16 (1987). The National Drug Policy Board has questioned the NNICC figure and considers it the low end of a range of possible percentages extending sharply higher. NDEPB, supra note 116, at 15-16. In early 1987 the Policy Board revised the domestically produced share of the American marijuana market to 19%. NDEPB, supra note 123, at 41. The DEA has tacitly acknowledged that American cannabis furnishes much more than 19% of the domestic market, which follows from its estimate that 1987 domestic production
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5 Besides marijuana than was previously thought to have existed.21
producing in quantity, American growers cultivate some of the world's most potent marijuana, commanding a greater price than 21 most imported varieties. Mounting efforts to curb cannabis cultivation have only caused further evolution in the marijuana industry. Areas of concentrated large-scale marijuana farming have declined due to the scrutiny flagrant cultivation attracts. The best known example is a section of northern California that received widespread publicity in the early 1980s as a mecca of advanced sinsemilla farming. 2 7 This area came under rigorous aerial surveillance and controversial paramilitary law enforcement during the state's Campaign Against Marijuana Planting (CAMP), begun in 1983. Critics and supporters of CAMP tended to agree that California's biggest commercial cultivators ceased operations or dispersed to areas receiving less 21 8 attention.
The multi-thousand plant American marijuana plantations

spanning several acres or more that were detected in the early
1980s have become less common.2 19 The average size of seized plots
increased 50% over 1986, to 3,000 metric tons after seizures. See BINM, supra note 184, at 17-18. 215. DEA, 1982 Domestic Marihuana Eradication/Suppression Program Final Report iii (1982). The futility of destroying domestic marijuana has not daunted the government's efforts. In 1987, authorities eliminated over 7,432,000 cultivated plants, an increase of 59% over 1986, and arrested 6,502 individuals, also a record. DEA, 1987 Domestic Cannabis Eradication/Suppression Program 1, 3 (1987). Local and state governments, increasingly assisted by National Guard units, supply personnel for eradication efforts. GAO, Law Enforcement Efforts to Control Domestically Grown Marijuana 26-35 (1984). 216. Going to Pot, supra note 201, at 12-13. The percentage of the eradicated crop consisting of high-potency sinsemilla (seedless) marijuana reached 41% in 1987. DEA, supra note 215, at 22. 217. See generally R. Raphael, Cash Crop 1-4 (1985) (socio-cultural history of the northern California marijuana industry). 218. Id. at 128-29; Campaign Against Marijuana Planting, Final Report 1986 2, 20-21 (1986) [hereinafter CAMP]. California's CAMP, the most extensive marijuana eradication program, raided over 2,292 growing sites with paramilitary law enforcement teams. The program came under court injunction and a court-appointed monitor to modify abusive practices, including warrantless searches and seizures and harassing citizens with helicopters. National Org. for Reform of Marijuana Laws v. Mullen, 608 F. Supp. 945 (N.D. Cal. 1985), remanded in light of California v. Ciraolo, 796 F.2d 276 (9th Cir. 1986); CAMP, supra, at 2, 35-37; R. Raphael, supra note 217, at 115-23; A. Trebach, supra note 50, at 154-60, 186-213. 219. Going to Pot, supra note 201, at 15. Operations of astounding size are still being found, however, including the 1987 discovery of two fields in Kentucky each containing more than 300,000 plants growing among stalks of corn. Id. at 15 n.69. Authorities also seized 48 tons of marijuana at a Minnesota farm and 34 tons at a Nebraska growing opera-
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[21:417
has decreased yearly and clandestine farmers sow "guerilla patches" - small, dispersed patches of short marijuana plants landscaped to blend into surrounding foliage.220 Marijuana farmers have also moved to national forests and other public lands to make 1 22 identifying cultivators more difficult. Indoor marijuana cultivation has expanded rapidly in response to police overflights.22 Seven hundred and fourteen indoor marijuana operations were seized nationwide in 1983; officials confiscated 1192 green houses in 1987.223 Indoor operations, although
more expensive, allow growers to raise crops throughout the year, use sophisticated equipment, and pay close attention to cannabis horticulture. Police success in forcing domestic marijuana growers to be more circumspect has fostered an even greater challenge to law enforcement in discrete, high technology cultivation inside homes and on isolated patches.
B.
FRIENDS AND NEIGHBORS THE NEW BREED OF DRUG "CRIMINAL"
Unlike the international smugglers who are more likely to fit police and public stereotypes of criminals, a different kind of outlaw was portrayed in a 1984 DEA report on American marijuana: All types of individuals are involved in domestic marijuana cultivation, ranging from seasoned drug traffickers to white collar business executives. Farmers, who generally are economically hard pressed, are cultivating marijuana in addition to corn or wheat to meet financial obligations and satisfy debts. Persons who are unemployed or senior citizens who can't live off retirement benefits are selling marijuana as an alternative source of income. Successful business executives are financing marijuana cultivation as another form of investment. Domestic marijuana cultivation has become an integral part of the economy in economically depressed areas of southeastern Oklahoma and northern California. 224
tion in 1987. 220. NDEPB, supra note 116, at 21. 221. Going to Pot, supra note 201, at 18-20. See generally GAO, Additional Actions Taken to Control Marijuana and Other Crimes on Federal Land (1984). 222. Going to Pot, supra note 201, at 16-18. 223. NDEPB, supra note 116, at 21-24. 224. DEA, supra note 209, at 4-5. See also DEA, supra note 215, at 13 ("Incidents of violence [connected to domestic marijuana cultivation] have decreased in the past several years."). These candid government reports contrast with the stereotype of violent and dan-
gerous marijuana growers the government often promulgates. See A. Trebach, supra note 50,
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Commercial marijuana growers probably number between 90,000 and 150,000 individuals, and persons cultivating cannabis 5 For-profit growfor their personal use may exceed one million. 21 ers are rarely linked to the large international traffickers dealing in cannabis and cocaine. Instead, marketing occurs through small local and regional distribution networks.226
Despite the resurgence of anti-drug sentiment in the 1980s, the otherwise non-criminal nature of many of the marijuana growers has hampered efforts to prosecute and imprison them. The National Drug Policy Board, in a report on domestic cannabis, blamed the relatively low number of federal prosecutions for cultivation in part on "[a]nti-federal sentiment, [which] is often high in rural southern and western states. Since many communities consider growers an economic benefit to the area, there is little enthusiasm for prosecution. 2 2 7 During one period in the mid-1980s, marijuana cultivators sentenced in federal court received average
sentences of two years.22 8 The frequent unwillingness of judges and

juries to inflict harsh punishment on otherwise normal citizens who happen to grow marijuana indicates the public's capacity to view marijuana differently from other drug offenses, at least when it requires imprisoning neighbors. 2
at 156-57, 191-92. The violence that does occur in marijuana black markets is attributable to the substance's illegality. 225. NDEPB, supra note 116, at 24. 226. DEA, supra note 209, at 5; NDEPB, supra note 116, at 25-26. 227. NDEPB, supra note 116, at 45, 46. California's CAMP program has only recently been able to secure a significant number of prison terms for convicted growers. CAMP, supra note 218, at 33. 228. NDEPB, supra note 116, at 18-19. Relatively light marijuana cultivation sentences contrast with the sharp upward trend for federal drug sentences, which averaged 38% longer in 1986 than in 1978. Federal Judges Handed Down Stiffer Prison Terms in 1986, N.Y. Times, June 9, 1987, at A18 col. 6. 229. Seizure and forfeiture of drug-connected assets can create a backlash of public sentiment if employed indiscriminately against marijuana cultivators. The Drug Policy Board wrote that "it is simply not feasible to investigate and establish ownership of the 40,000 plots eradicated last year [1985]. Seizing eight houses on a block of ten for growing a few plants is feasible but imprudent. Federal drug efforts must remain sensitive to public opinion." NDEPB, supra note 116, at 51. California juries have proved unsympathetic to attempts by federal prosecutors to secure the forfeiture of land used for marijuana cultivation. Lindsey, Nipping a Bountiful Marijuana Crop, N.Y. Times, Sept. 14, 1986, at E4, col. 3. Asset seizures related to domestic cannabis cultivation totaled $13.5 million in 1986, a small sum when compared to the $379 million in total confiscations by the DEA in fiscal 1986. DEA, 1986 Domestic Cannabis Eradication/Suppression Program Final Report 21 (1986); DEA, press release, Dec. 30, 1986, at 2.
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[21:417
The government's attempts to spray herbicides on domestic marijuana in the 1980s have also triggered public opposition. The application of paraquat on marijuana patches in national forests in August of 1983 generated negative publicity for the DEA, followed by lawsuits by environmental groups and the National Organization for the Reform of Marijuana Laws that forced the agency to prepare an environmental impact statement for herbicide eradication.23 " The DEA produced an environmental impact statement and then concluded that posting warnings on sprayed plots and taking precautions in application would prevent damage to marijuana smokers and the surrounding countryside. 2 "' The DEA con2 s and ducted very sporadic spraying operations in the mid-1980s1 sprayed no plants in 1987 because of the trend toward small patches that frustrate herbicide operations. 3 3 The Drug Policy Board has recognized a political component to suppressing domestic marijuana and has suggested that law enforcement justify prohibition. The visibility of the federal eradication program has been "exploited by pro-drug lobbies who repeatedly use the media to argue that the Program is costly and ineffective and that the ill effects of marijuana, like alcohol and tobacco, could be minimized through regulation.2 ' 3 Federal agencies hunting marijuana should stress "the known economic and so35 2 cial costs of cannabis use. America's verdant cannabis industry presses drug law enforcement to ever harsher measures that may eventually convince the public of the harm of marijuana prohibition. A nationwide, atomized and well-hidden cottage industry that enjoys a public perception different from that of most serious drug law violators will be impossible to contain short of police state measures. American
230. (1986). 231. G. Uelman & V. Haddox, Drug Abuse and the Law Sourcebook 2-109, 2-110 DEA, Notice of Record of Decision (Sept. 6, 1985) (sanctioning use of paraquat,
glyphosate and 2, 4-D).

232. G. Uelman & V. Haddox, supra note 230. 233. Going to Pot, supra note 201, at 6 n.16. The Drug Policy Board recommended in 1986 only "selective use of herbicides on large remote plots .... Even the most carefully prepared environmental impact statement may not assuage public fear and aversion." NDEPB, supra note 116, at 63. 234. NDEPB, supra note 116, at 62. 235. Id. Regardless of this advice, in the summer of 1988 the federal government announced plans to mobilize thousands of police and National Guard members for a redoubled effort to reduce the marijuana crop. Isikoff, U.S. Targets Domestic Crop of Marijuana, Washington Post, July 3, 1988, at Al, col. 4.
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463
cannabis of unprecedented price, potency, and pervasiveness has taken root as a consequence of suppression of foreign production and high demand for a drug the government insists on prohibiting.
X. THE NEW FRONT IN THE WAR ON DRUGS: TARGETING THE
USER
"Drug trafficking is the most serious organized crime problem
in the world today," observed the President's Commission on Organized Crime in 1986. The report continued: But drug trafficking is only part of a broader, unified phenomenon which also includes the illicit use of drugs. It is the users who finance organized crime through their drug purchases, and it is they who must accept responsibility for the broad range of costs associated with the drug industry.... This Commission believes that the Nation's drug policy must have as its goal the elimina236
tion of illegal drug use.
In pursuit of this goal, the Commission urged more arrests of drug 2 37 users and urine tests of the general population. The Commission's call for targeting drug users through urine tests reflected the new consensus in the mid-1980s of prohibition advocates - stringent supply reduction measures have failed and winning the drug war requires bypassing the criminal justice sys2 3 ' Since the tem to inflict punishment on drug users. 1960s demonstrated that imprisoning marijuana users is an ineffective policy, striking at the economic livelihood of marijuana smokers under the guise of a drug-free workplace offers a panacea for prohibitionists.
236. PCOC, supra note 185, at 5, 388. 237. Id. at 453-55. The Commission's suggestion of greatly expanded drug testing for federal workers and contractors triggered dissent even within its own law enforcement-dominated ranks. Shenon, Crime Panel Issues Its Final Report, N.Y. Times, Apr. 2, 1986, at Al, col. 2. Yet in 1988, the shift in national strategy to punishing drug users prompted Republican legislative proposals to force companies receiving federal funds to adopt "drug free" workplace plans with mandatory urine testing of employees. Dewar & Isikoff, supra note 164. 238. While some law enforcement leaders acknowledged by the mid-1980s the inability of police to control drug smuggling and sales, Kerr, Top Drug Agent Chides Congress On Border Plan, N.Y. Times, Sept. 19, 1986, at B1, col. 1, a national consensus emerged by 1988 that reduction in the demand for drugs should be a priority. Isikoff, Panel Says U.S. Needs Top-Level Antidrug Chief, Washington Post, June 22, 1988, at A3, col. 1; Boffey, Drug Users, Not Suppliers, Held Key Problem, N.Y. Times, April 12, 1988, at Al, col. 3. The new consensus for demand reduction manifested itself in the proposals for the 1988 federal anti-drug bill, which included a variety of punishments for drug users short of incarceration. See supra note 164 and accompanying text.
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Urine drug screens of millions of citizens annually have undercut the marijuana decriminalization policies of the 1970s and have marked a sharp escalation of the illegality of cannabis.
A.
'2 3 "CHEMICAL MCCARTHYISM: '"
THE FLAWED METHODS AND
PREMISES OF URINE TESTING
Widespread urine testing of Americans to detect and punish alleged marijuana smokers 4 0 began in the military in the early 1980s and has quickly spread to the civilian government and the private sector.2 ' Over four million Americans underwent urine drug screens in 1984 as public and private entities sought to supposedly reduce what they perceived to be risks of drug-impaired workers. 24 Numerous problems, however, have afflicted widespread urine drug screens and exposed the unfairness and inaccuracy of drug testing for marijuana smokers and non-drug users alike.2 43 The upsurge of random urine drug screens of workers has
239. Lundberg, Mandatory Unindicated Urine Drug Screening: Still Chemical McCarthyism, J. A.M.A., Dec. 5, 1986, at 3003. 240. Marijuana is the unacknowledged focus of drug testing programs. Estimates for the proposed federal drug testing program predict that 80-85% of the positive tests will be for cannabis, 5-10% for cocaine, and the rest for other drugs. Proposal for Drug-Testing Federal Employees: Hearings Before the Subcomm. on Human Resources of the House Comm. on Post Office and Civil Service, 99th Cong., 2d Sess. 15 (1986)(testimony of Dr. Lawrence Miike, Office of Technology Assessment). 241. The military adopted a "zero-tolerance" policy for illicit drug use by service men and women in 1982. Abney, Drug Abuse, Courts-Martial, and Random Urinalysis - An Unworkable Combination, 27 Ariz. L. Rev. 1, 2, n.6 (1985). This helped spur the rise of a commercial urine testing industry. See Sims, Boom in Drug Tests Expected, N.Y. Times, Sept. 8, 1986, at D1, col. 4. Two drug-urine tests, the "EMIT" enzyme-immunoassay series and the "Abuscreen" radio-immunoassay series came to dominate the market. Id. Laboratories and hospitals purchase these costly machines and offer urine testing services. Urine samples are sent to the laboratory where an assay of the specimen is conducted. Schwartz & Hawks, Laboratory Detection of Marijuana Use, 254 J. A.M.A., at 789-90 (1985). Drug testing has also spread to high visibility groups outside the workforce, such as college athletes. See generally Brock & McKenna, Drug Testing in Sports, 92 Dick. L. Rev. 505 (1988). 242. Gampel & Zeese, Are Employers Overdosing on Drug Testing?, Business & Soc'y Rev., Fall 1985, at 34-35. 243. The military program in particular has suffered pervasive problems that have jeopardized the careers of thousands of service men and women. Morgan, Problems of Mass Urine Screening for Misused Drugs, 16 J. Psychoactive Drugs 305, 312-13 (1984). The Army, Air Force and Marine Corps conducted over two million urine drug screens in 1986 and planned to increase the number and sensitivity of the tests in 1987. The Navy, Marine Corps and Air Force discharged 11,785 men and women for illicit drug use in 1986. Halloran, Drug Use in Military Drops; Pervasive Testing Credited, N.Y. Times, Apr. 23, 1987, at A16, col. 1.
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spawned significant legal and political opposition, in contrast to broad support for tougher drug laws."' B.
PROBLEMS OF URINE TESTING ACCURACY
Mass urine drug screens have severely burdened a complex forensic test.245 The standard immunoassay, EMIT and Abuscreen, can produce erroneous results even under optimal laboratory conditions. 246 Over-the-counter medicines, prescription drugs and traces of other substances found in urine have triggered false positives for various illegal drugs. 247 The urine specimens furnished by the tested individual can be adulterated or diluted with numerous simple substances to produce false negatives. 45 Proper urine testing requires that the specimen be monitored during delivery to the container and that the sample be kept refrigerated or frozen before testing. The molecular residue of illicit drugs found in urine, called metabolites, deteriorates quickly; therefore testing has to be done within days of the sample's furnishing to ensure accuracy unless the sample is frozen.2 49 The volume of samples tested challenges the ability of employers and labs to maintain a well-documented chain of custody for each specimen. Within the laboratories, substantial error rates, especially false negatives, have been frequent.25 0 The pitfalls of immunoassay testing have forced a consensus that any positive result for an illicit drug must be confirmed by a laboratory skilled in forensic analysis which double checks positive specimens using gas chromatography with mass spectrometry (GC/ MS). 2 51 This complex and expensive laboratory procedure can discriminate some of the substances that produce false positives. The GC/MS is nonetheless highly susceptible to the same chain of
244. 132 Cong. Rec. E 677 (daily ed. Mar. 10, 1986) (extension of remarks by Rep.
Schroeder, inserting editorials of Wall St. J., N.Y. Times, & Philadelphia Inquirer opposing
mandatory urine testing of federal workers). 245. Dubowski, Drug-Use Testing: Scientific Perspectives, 11 Nova L.J. 415, 418 (1987); Lundberg, supra note 239. 246. See Dubowski, supra note 245, at 502-07. 247. See id. at 457-59. 248. See id. at 457-68. 249. Schwartz & Hawks, supra note 241, at 790, 792. 250. See Hansen, Caudill & Boone, Crisis in Drug Testing, J. A.M.A., Apr. 26, 1985, at 2382, 2386. 251. McBay, Cannabinoid Testing: Forensic and Analytical Aspects, 23 Laboratory Mgmt. 36, 38 (1985).
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custody and technician competence problems that undermine immunoassay, since most laboratories in this largely unregulated business do not adhere to forensic standards. 5 2 No urine drug screen can determine when or how much of a drug was consumed or whether the person was under the influence of the substance when the specimen was given.25 Metabolites of illicit drugs linger in the urine in detectable trace amounts long after the effect of the drug has worn off. Drug tests differ dramatically in this respect from breathalyzer and blood tests for 54 alcohol. Cannabis poses unique problems for urine screening. Marijuana metabolites, called cannabinoids, are fat-soluble rather than water-soluble like many drugs, and thus cannabinoids persist in the urine in trace amounts for longer periods than other illicit drugs, which wash out of the body more quickly. Infrequent marijuana smokers often harbor identifiable amounts of cannabinoids for two to five days after last use, and heavy regular smokers will trigger positive tests for up to approximately one month after ceas55 ing use. Cocaine metabolites, by contrast, linger only a few days.2 56
C.
PROBLEMS OF URINE TESTING LEGALITY
The proliferation of urine drug screen programs has spawned diverse legal challenges to the tests, raising issues of privacy rights, terms of collective bargaining agreements and fourth amendment protections against unreasonable searches and seizures. Drug
252. See Dubowski, The Role of the Scientist in Litigation Involving Drug-Use Testing, 34 Clinical Chemistry 788, 789 (1988); Lundberg, supra note 239, at 3004. 253. Lundberg, supra note 239, at 3004. 254. See Woodford, Marijuana: Impairment and Intoxication. in Social Drug Use in Society, supra note 81, at 58-61; Mason & McBay, Cannabis: Pharmacology and Interpretation of Effects, 30 J. Forensic Sci. 615, 625 (1985). 255. Schwartz & Hawks, supra note 241, at 789. 256. Dubowski, supra note 245, at 530. This disparity has motivated some marijuana smokers under the supervision of urine testing programs to shift to cocaine use. Symposium Proceedings, The War on Drugs, 11 Nova L.J. 939, 980 (1987). Passive inhalation of marijuana smoke by bystanders who are not smoking can also trigger positive urine test results. A cannabis positive is possible from a strong and persistent social exposure to the drug's smoke, but the sensitivity of the immunoassay test is crucial to determining whether a positive might stem from passive inhalation of smoke. Cone & Johnson, Contact Highs and Urinary Cannabinoid Excretion after Passive Exposure to Marijuana Smoke, 40 Clinical Pharmacology & Therapeutics 247, 253-55 (1986); Dubowski, supra note 245, at 510-13.
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testing procedures are a significant aspect of the litigation. Points

in dispute in drug testing of government employees include the
need for individualized suspicion before testing, the connection between a positive urine test and workplace performance, alternative methods of detecting drug use and diminished expectations of privacy among certain classes of public workers."' The diversity of programs and people affected by testing will probably preclude the emergence of any unified constitutional standard for drug 58 testing. Private employers are free of federal constitutional limits on drug testing and a large and increasing minority of corporations have implemented urine drug screens. 2 " But legal questions persist about the permissible scope of corporate drug-testing programs,2 60 and many companies prefer limiting urine testing to job applicants and employees under suspicion of drug-related impairment.2 " 1 Corporate substance abuse experts have assailed urine testing as being punitive, directed against the occasional marijuana smoker, and inferior to employee assistance programs that offer treatment for the
truly impaired worker.262

257. The Supreme Court will soon provide guidance on this divisive issue. Compare National Treasury Employees Union v. Von Raab, 816 F.2d 170 (5th Cir. 1987) (Customs Service testing of employees who seek transfers to law enforcement positions is reasonable due in part to the nature of the work), cert. granted, 108 S. Ct. 1072 (1988), with Railway Labor Executives' Ass'n v. Burnley, 839 F.2d 575 (9th Cir.) (federal regulations mandating drug tests of railroad employees after accidents unconstitutional, since drug tests do not show impairment and are thus not reasonably related to the safety goals of the program), cert. granted, 108 S. Ct. 2033 (1988). See also Patchogue-Medford Congress of Teachers v. Board of Educ., 70 N.Y.2d 57, 510 N.E.2d 325 (1987) (under New York Constitution, teachers can not be subjected to drug tests absent reasonable suspicion of drug use). 258. Stille, Some Judges 'Say No' to Drug Tests, Nat'l L.J., Oct. 6, 1986, at 1, col. 3. 259. Isikoff, Corporate Drug Testing On the Rise, Survey Says, Washington Post, June 10, 1988, at A18, col. 1 (survey of 1,118 companies showed that 28% of companies with over 5,000 employees tested for drugs). 260. See e.g., Kelley v. Schlumberger Technology Corp., No. 87-1933 (1st Cir. June 15, 1988) (upholding $125,000 jury verdict for negligent infliction of emotional distress on private employee who tested positive for marijuana); see generally Cox, Juries Sympathetic in Drug-Test Cases, Nat'l L.J., Dec. 7, 1987, at 3, col. 1 (private employees having success in suits against companies in states with constitutional privacy rights). 261. Graduates Face Drug Tests in Joining Job Market, N.Y. Times, June 21, 1987, at A29, col. 1; Lindsey, Worker Drug Test Provoking Debate, N.Y. Times, May 3, 1986, at Al, col. 3. 262. See Maltby, Why Drug Testing Won't Work, Inc., June 1987, at 152; Wrich, Beyond Testing: Coping With Drugs At Work, Harv. Bus. Rev., Jan.-Feb. 1988, at 121. On the horizon are methods of drug testing even more invasive of privacy than urine screens. Some scientists claim that assays of hair present a history of substance use extending back several years. Cox, Analysis of Hair Traces Drug Use, Nat'l L.J., July 27, 1987,
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THE INVALID PREMISE AND PUNITIVE CONSEQUENCES OF TESTING FOR MARIJUANA
Few employers or government officials have articulated a rationale for urine screening for marijuana other than the drug's illegality. Prohibitionists seeking to justify testing for marijuana use have relied on flawed research purportedly demonstrating that offthe-job marijuana use erodes workplace productivity. A widely cited study by the Research Triangle Institute pegged lost productivity from marijuana use at over $34 billion in 1980.61 The researchers based this figure on a survey finding that former heavy marijuana smokers generally have lower incomes than non-marijuana smokers, while current smokers show no difference in income from non-smokers."" The report extrapolates this extremely loose correlation26 5 into an estimated $34 billion productivity loss from marijuana use. Misconstruing research to support marijuana prohibition is common, but this report has been embraced to legitimize a workplace vendetta against marijuana users. "6 A cannabis positive on a urine can lead to severe penalties for employees, job applicants and athletes who may have never allowed marijuana to interfere with performance. Employees with positive cannabis test results who are not fired may be forced to enter drug treatment programs that waste valuable rehabilitation
resources on marijuana smokers.26 7 The dragnet process is
at 3, col. 1. 263. Harwood, Economic Costs to Society of Alcohol and Drug Abuse and Mental Illness: 1980 70 (1984). 264. Id. at A19-A24. 265. The control variables matching former heavy marijuana smokers and non-smokers include the categories "office worker," "manager," and "service worker," among which large disparities in income are to be expected. More fundamentally, the study assumes that a lower income demonstrates a productive capacity crippled from marijuana use, ignoring the multitude of variables that influence an individual's ability and desire to produce income. Furthermore, the study is at a loss to explain the lack of disparity in income between current marijuana smokers and non-users. 266. See, e.g., Castro, supra note 76, at 53. Commentators have noted the lack of any conclusive evidence that off-the-job marijuana use affects workplace performance. Lunberg, supra note 239, at 3005; Morgan, supra note 241, at 305-06; McBay, Efficient Drug Testing: Addressing the Basic Issues, 11 Nova L.J. 647, 648 (1987); Wisotsky, The Ideology of Drug Testing, 11 Nova L.J. 763, 766-67 (1987). 267. Denenberg & Denenberg, Drug Testing from the Arbitrator's Perspective, 11 Nova L.J. 371, 408-10 (1987). The massive program for federal workers being implemented in 1988 mandates discipline and rehabilitation for employees who test positive. Lauren, 350,000 Face Drug Testing, Fed. Times, May 16, 1988, at 1, col. 4. Of the 81,000 federal employees counseled for substance abuse by 1982, 90% were as-
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intrusive, degrades all workers, and has brought new strains to labor-management relations.2 Drug testing has enabled prohibition to transcend the criminal justice system's constitutional constraints on punishment, thus adding untold thousands of victims to the hundreds of thousands arrested each year for marijuana possession. Urine drug screening amounts to one of the most pervasive attempts at social control in American history and resembles police state measures with its reliance on instilling fear of arbitrary testing and accusation. XI.
THE OPPORTUNITY FOR REFORM
The futility of marijuana prohibition reveals itself in the irony of this decade's offensive against cannabis - marijuana use has steadily declined since the late 1970s, not because of the criminal law or drug testing, but due to individual choices of lifestyle and values.2"9 The number of marijuana users smoking at least monthly declined from 22.5 million in 1979 to 18.2 million in 1985, a decrease of 20%.270 Adolescents, the group considered most at risk
from marijuana use, have rejected cannabis in ever greater numbers since 1978. The percentage of high school seniors smoking marijuana within the last month steadily retreated from its peak of 37.1% in 1978 to 23.4% in 1986.271 The decline in high school marijuana use mirrored a rising perception among adolescents that 72 marijuana use can be unhealthy. 2 The criminal law seemingly had
sisted with alcohol problems, 10% with drugs. Effects of Alcohol and Drug Abuse on Productivity: Joint Hearing before the Subcomm. on Alcoholism and Drug Abuse and the Subcomm. on Employment and Productivity of the Comm. on Labor and Human Resources, 97th Cong., 2d Sess. (1982) 33 (testimony of Michael Frost, Associate Director of the Office of Personnel Management). 268. Stille, supra note 258; see Susser, Legal Issues Raised by Drugs in the Workplace, 36 Lab. L.J. 42 (1985). 269. Reuter, supra note 109, at 1030, 1036-37; see J. Inciardi, supra note 37, at 37. 270. Brinkley, supra note 124. In the 18-25 age bracket, where marijuana use has always been highest, those reporting having smoked in the past month dropped to 21.9% in 1985, down from a high of 35.4% in 1979. Id. 271. Kerr, High-School Marijuana Use, supra note 123. The percentage of seniors smoking on a near daily basis was more than halved from 1978 to 1986, dropping from 10.7% to 4.9%. Id. 272. L. Johnston, P. O'Malley, & J. Bachman, supra note 119, at 112-13. The percentage of seniors perceiving a great risk of harm from "regularly" smoking marijuana doubled from 1978 to 1985, from 35% to 70%. Id. Although these attitudes may be based in part on inaccurate government information on marijuana's effects, the negative opinions may also demonstrate that adolescents are capable of realizing the potential for marijuana abuse, regardless of the legal status of the drug.
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little impact on adolescent behavior and attitudes - over 80% of the high school seniors surveyed in the mid-1980s stated that legalization would not affect their use or non-use of the drug."' Marijuana's declining popularity presents an ideal opportunity to move to a regulatory scheme while minimizing the number of initiates to the drug upon legalization. The effect on cannabis consumption of legalization cannot be known with certainty prior to implementation, but polls have consistently indicated that few non-marijuana smokers, adult or adolescent, would try the drug if it were legalized.274 A transition to a regulatory scheme could make cannabis available with minimum fanfare and seek to perpetuate the current trend against its use.
A. THE DUTCH EXAMPLE
The marijuana policy of the Netherlands presents an alternative to prohibition that allows legal sales of the drug without prompting widespread use. The Dutch allow municipally subsidized youth centers to permit a reputable "house dealer" to sell marijuana and hashish on the premises. The government explains that this arrangement brings about a strict separation between the setting or markets in which hard drugs and cannabis preparations circulate. With this policy the management of youth centers try to prevent that its [sic] young visitors are driven underground and that their behavior becomes manifestly antisocial. This policy also leads to decreasing the risk of addiction to hard drugs of the groups visiting the centers. 76 Dutch youth have overwhelmingly rejected legal marijuana and
273. Id. at 122-24. Seven to eight percent of the seniors stated they would try marijuana upon legalization. Id. 274. D. Peck, supra note 99, Field Institute, supra note 102, at 26; 3 National Governors Conference, supra note 38, at 33. The opportunity to smoke marijuana is a commonplace experience in America. Fifty percent of youth ages 12 to 17, 85% of young adults ages 18 to 25, and 41% of adults 26 and older reported in 1982 that "they have had the chance to try marijuana if they wanted to." J. Miller, I. Cisin, H. Gardner-Keaton, A. Harrel, P. Wirtz, H. Abelson & P. Fishburne, supra note 81, at 9. 275. Several commentators have outlined viable regulatory schemes for legal marijuana. J. Kaplan, supra note 6, at 332-47; L. Grinspoon, supra note 1, at 367-69; National Task Force on Cannabis Regulation, The Regulation and Taxation of Cannabis Commerce (Nat'l Org. for the Reform of Marijuana Laws, 1982). 276. Interdepartmental Steering Group on Alcohol and Drug Policy, Response of the Netherlands Government to Requests for Information Concerning the Sale of Cannabis in 'De Kokerjuffer' Youth Centre in Enschede and Dutch Policy on Narcotic Drugs 1 (1983). Laws against smuggling and large-scale trafficking in cannabis are enforced in Holland. Id.
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hashish. Only 8% of Dutch youth in high school or college in 1983 had sampled cannabis;2 " in the United States, 27% of twelve to seventeen-year-olds in 1982 had tried the drug.2 78 The Dutch survey's overall finding showed that 85% of the nation's people aged fifteen to twenty-four had never indulged in cannabis. The percentage of regular users declined to 5% of this age bracket, 27 9 well below half the use rate of Americans of comparable ages. 280 Nor has the legal availability of marijuana in the Netherlands dissuaded a large majority of Dutch youth from their belief that marijuana use is unwise. 28 1 Dutch researchers found the Netherlands' low cannabis use rates similar to or lower than those of neighboring countries without retail cannabis sales. They concluded that a "repressive policy will not deter young people from experimenting at first hand with hashish and marijuana and, conversely, a liberal policy will not to any marked extent promote the desire to experiment."2 82 B. SEIZING THE OPPORTUNITY FOR REFORM The Dutch experience shows that access to legal cannabis does not necessarily promote widespread use and that law enforcement policies have only limited influence over a social phenomenon like marijuana smoking. The precipitous decline in marijuana use in the United States began before the advent of widespread urine testing and the public's preoccupation with drug enforcement. Cultural trends such as the emphasis on physical fitness, career advancement and the declining fashionableness of marijuana use contributed greatly to plummeting American consumption. Marijuana first gained popularity partly as a symbol of rebellion, and legalization would neutralize this as a factor for any future upsurge in use. The current American prohibition policy stresses that public health and safety ramifications of cannabis use demand maximum pressure to reduce consumption. Policy makers believe that the
277. G. Sybling, The Use of Drugs, Alcohol and Tobacco 3 (1984). 278. J. Miller, I. Cisin, H. Gardner-Keaton, A. Harrel, P. Wirtz, H. Abelson & P. Fishburne, supra note 81, at 7. 279. G. Sybling, supra note 277, at 15. 280. J. Miller, I. Cisin, H. Gardner-Keaton, A. Harrel, P. Wirtz, H. Abelson & P. Fishburne, supra note 81, at 7. 281. G. Sybling, supra note 277, at 15. 282. Id. at 3. More recent surveys demonstrate that Dutch youth, even those living in Amsterdam, continue to use marijuana at low rates. McCartney, Coffee, Tea, or Marijuana? Dutch Let Cafes Sell Drugs, Washington Post, Nov. 15, 1987, at Al, col. 3.
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immediate effects of marijuana intoxication, speculative concerns over long-range consequences of heavy use, detrimental influences on adolescents, and marijuana's association with other illicit drugs
justify penalties for any use of the substance. After decades of extensive use of the drug, these alleged costs are minor and are diminishing as cannabis consumption declines. In stark contrast, violent black markets, arrests, imprisonments, police state measures, government hypocrisy and unregulated marijuana confront the na2 8s tion with a staggering price for prohibition. The greatest drawbacks of marijuana, irresponsible actions by
the intoxicated and the unfulfilled potential of compulsive users,

can be addressed better under a regulatory system. Law enforce-
ment and workplace discipline under a regulatory regime will focus on the abuser of cannabis who threatens others, rather than apprehending someone who is in possession of the drug or has traces of
it in his or her urine. The annual tax windfall from a cannabis regulatory system, which will be in the billions of dollars, will enable the drug to more than pay its way for treatment and will pro2 8 Some vide funding for more pressing substance problems. cocaine problems might abate when marijuana smokers are no longer forced to purchase cannabis from purveyors of a variety of illegal drugs."' Despite the backlash against cannabis in the 1980s, a sizeable minority of the population still opposes criminalizing marijuana use. In Oregon, a 1986 referendum to legalize cultivation of marijuana for personal use drew the approval of 27% of the voters. 28
283. Perhaps the clearest contrast between the costs of marijuana consumption and marijuana prohibition is in deaths. Marijuana's toxicity is so low that no one is known to have ever died from excessive consumption of the drug. L. Grinspoon, supra note 1, at 22728, 330. In the 1986 domestic cannabis eradication program alone, five police officers and a pilot were killed, not at the hands of the criminal marijuana growers, but in aircraft as they strove to hunt down the illegal weed. DEA, supra note 208, at 16. Unknown numbers of police and suspects die annually in violence stemming from marijuana prohibition. 284. See National Task Force, supra note 275, at 18. Consultants to the Internal Revenue Service estimated unreported illegal income from marijuana sales in 1982 at $6.1 billion. Abt Associates, Unreported Taxable Income from Selected Illegal Activities, I Consensual Crimes 62 (1983). 285. The particularly severe seasonal marijuana shortage in the summer of 1986 and the floodtide of cocaine caused in part by the greater ease of seizing marijuana prompted some cannabis users to turn to other illicit drugs. See Lindsey, supra note 97. 286. Newman, Oregon Voters Bury Marijuana Proposal, U.S. J. Drug & Alcohol Dependence, Dec. 1986, at 21. See generally Turner, Lines Are Drawn in Oregon Battle on Marijuana Referendum, N.Y. Times, Oct. 12, 1986, at A30, col. 1 (background of Oregon Marijuana Initiative campaign). In 1972, a California referendum proposal to decriminalize
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Scholarly criticism of marijuana prohibition28 7 has mounted, and
some politicians have bravely called for national debate on drug 2 8 Although cannabis prohibition rests on a prohibition altogether. formidable consensus, it differs vastly from other criminal laws and from other drug laws in the number of people affected, the drug's effects on society, and public perceptions of the drug. 8 9 The American people have demonstrated their ability to handle marijuana by experimenting with the drug and then rejecting it in large numbers, with little regard to prohibition. Cannabis prohibition rests on public misconceptions and fear of a substance that the majority of people have still not experienced firsthand. As marijuana prohibition tightens its grip on the nation's citizens and institutions, the public will eventually reject this war directed against its friends and neighbors.
XII. CONCLUSION
The federal government launched marijuana prohibition over a half century ago in 1937 because of unfounded fears that the drug was a dangerous narcotic. Marijuana's arrival in the American mainstream in the 1960s and 1970s forced policy makers to stop imprisoning marijuana smokers. The nation's experience with the benign effect of marijuana on public health and the destructive consequences of prohibition convinced many dispassionate observers of the good sense of legalization. In the 1980s, however, an inflamed public and government
possession and cultivation of marijuana drew 33% of the vote. P. Anderson, supra note 22, at 88-89, 99-101. 287. Nadelmann, U.S. Drug Policy: A Bad Export, 70 Foreign Pol'y 83, 103-08 (1988); G. Bennett, Crimewarps - The Future of Crime in America 229-30 (1987). 288. Torry, Call to Debate Legalization of Drugs Becomes Louder, Washington Post, May 15, 1988, at Al, col. 4. 289. Public opinion polls taken at the time of the revelation of marijuana use by Supreme Court nominee Judge Douglas Ginsburg showed a large majority of the public tolerant of previous marijuana use by public officials. See, e.g., Hevesi, 2 Democrats Admit the Use of Marijuana, N.Y. Times, Nov. 8, 1987, at A35, col. 1. Another poll showed that a plurality of the respondents, 40%, would accept the personal decision of someone they knew to smoke marijuana occasionally. Press, Pot & Politics, Newsweek, Nov. 16, 1987, at 46, 52. This Article does not explore the underlying cultural and social struggles reflected in the political majority's dogmatic commitment to marijuana prohibition. See generally J. Bakalar & L. Grinspoon, Drug Control in a Free Society (1984) (drug laws are counterproductive tools of cultural dominance that ignore the reality of drug use in society); T. Szasz, Ceremonial Chemistry: The Ritual Persecution of Drugs, Addicts, and Pushers (1975) (drug laws reflect a moral crusade rather than a rational approach to the causes and consequences of drug abuse).
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lumped marijuana with other illicit drugs and labeled it a threat to

the social fabric. Taking advantage of this misconception, the government has sharply escalated police powers and has encouraged driving marijuana users from the workplace through drug testing. The dangers of an ever-escalating prohibition, coupled with the increasing moderation shown by marijuana users, require the nation to reexamine a policy that labels as criminals tens of millions of citizens.
BOOK REVIEW
Reckless Disregard. By Renata Adler. New York: Alfred A. Knopf, 1986.
KAREN SALDITT*
Reckless Disregard' chronicles two fairly recent, highly publicized libel suits, Sharon v. Time, Inc.2 and Westmoreland v. CBS.' The book recounts the history of these two cases - from pretrial discovery and the taking of depositions to the ultimate resolution of both lawsuits - in terms easily accessible to the layperson. In addition to offering a detailed account of the evidence in both cases, the author devotes considerable attention to the conduct and perceived motives of the key players in these two lawsuits. Both lawsuits, which coincidentally went to trial in neighboring courtrooms in Manhattan, involved a well-known general suing a giant media corporation for libel. Sharon, an Israeli general, sued Time magazine for reporting, erroneously, that he had encouraged the Lebanese soldiers to slaughter Palestinians in their refugee camps. Westmoreland, Commander in Chief of the United States Forces during the Vietnam War, accused CBS of defaming him in its documentary, " The Uncounted Enemy: A Vietnam Deception." The documentary claimed to have discovered a conspiracy among high level military intelligence figures to understate enemy troop strength and thus prolong this country's involvement in the war. Neither plaintiff prevailed. While the jury in Sharon v. Time, Inc. found that the general had succeeded in making the first two requisite showings for a successful libel claim - that the statement in contention was both false and defamatory - Sharon was unable to overcome the last, and arguably most difficult, hurdle: that of showing "by clear and convincing evidence" that Time had acted with "actual malice."'4 As Adler points out, the "actual
* Writing and Research Editor, Colum. J.L. & Soc. Probs., 1988-89.
1. R. Adler, Reckless Disregard (1986).

2. Sharon v. Time, Inc., No. 83-C-4660 (S.D.N.Y. 1985). 3. Westmoreland v. CBS, No. 82-C-7913 (S.D.N.Y. 1985). 4. This rule, as articulated in New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964), requires government officials alleging libel or defamation to show that the defendant acted with "'actual malice' - that is, with knowledge that [the statement] was false or with
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malice" standard, which requires a "public figure" plaintiff in a libel suit to show that the defendant acted with knowledge of the falsity of the statement or with reckless disregard as to its truth or falsity,' is a particularly difficult burden to overcome. Unlike its counterpart, Westmoreland v. CBS did not even reach the jury, despite what Adler points to as evidence of CBS' bad faith in producing its documentary. In a turn of events which the author attributes to a combination of Westmoreland's counsel's relative lack of experience (and confidence) and the particularly aggressive litigation tactics of the law firm representing CBS (New York's Cravath, Swaine & Moore), both parties eventually signed a "Joint Statement" which brought the litigation to a close.6 As a drama - depicting the tactics, conflicts and tensions which characterized the development of these two cases - the book succeeds in large part. Throughout, Adler exhibits a keen eye for detail as well as a clear understanding of trial practices. Her diligent courtroom reporting (she read through many thousands of pages of pretrial transcripts and depositions and attended much of the trials themselves) succeeds in conveying to the reader the intensity of such high-profile litigation. Moreover, her thoughtful presentation of the evidence, which includes many interesting excerpts from depositions and trial testimony, easily leads the reader to the (desired) conclusion that, at the very least, the staffs of these two media corporations exercised poor editorial judgment. Finally, the work offers a provocative, albeit occasionally slanted, portrayal of the key players in these two lawsuits, which sets the reader thinking about the professional practices of two of this country's most powerful establishments: the legal profession and the press. In these respects, the story of these widely publicized libel cases is highly entertaining and well worth reading. Unfortunately, Adler's analytical treatment of these cases, and particularly of the legal principles underlying their outcomes, is
reckless disregard of whether it was false or not." The "actual malice" standard was subsequently extended to cover not only suits by government officials, but also those by "public figures." Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). See infra notes 8-14 and accompanying text for a brief discussion of the development of the law in this area. 5. Sullivan, 376 U.S. at 279-80. 6. Adler questions the judgment of Westmoreland and his counsel in agreeing to the terms set for discontinuing his lawsuit. Noting that the Joint Statement contained no significant concessions on the part of CBS, Adler suggests that "Westmoreland could have obtained such a statement not only without ever bringing suit but even if he had brought suit and lost." R. Adler, supra note 1, at 75.
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less thorough. Specifically, in her critique of the "actual malice" standard, Adler fails to address adequately the important first amendment concerns which initially prompted the Supreme Court to impose this limitation on state libel laws.7 Instead, Adler focuses exclusively on the hardships of individual libel plaintiffs: the harm they suffer as a result of false or misleading statements made about them by the media and their interest in being vindicated. The resulting, rather one-dimensional, "good guy" versus "bad guy" analysis of these cases is particularly disappointing in light of the author's educational background. As a graduate of Yale Law School, Adler is undoubtedly familiar with the complex and competing considerations which led to the adoption of the "actual malice" standard. To a large extent, the villains of Reckless Disregard,two large media corporations with considerable power (both financial and otherwise), were relatively easy targets. However, Adler's criticism of Sharon and Westmoreland might have included a more balanced discussion of the legal issues involved. Most notably missing is a consideration of the potential "chilling" effect that a more relaxed standard might have on the journalistic practices of media organizations, both large and small. In short, Adler's criticism of the "actual malice" standard loses much of its persuasive force in the absence of a more thorough discussion of the competing issues at stake in "public figure" libel cases. I.
TOWARD A WORKABLE COMPROMISE: THE DEVELOPMENT AND APPLICATION OF
THE "ACTUAL MALICE" STANDARD
At the heart of Adler's book, emerging inevitably from the consideration of the Sharon and Westmoreland cases, is an inquiry into the overall fairness of the way our legal system handles such libel claims. A common theme running throughout much of this book is that of the oppressed individual libel plaintiff who, having suffered some harm to reputation as a result of the media's circulation of false or misleading statements, is forced to enter into an expensive courtroom battle to vindicate his or her interests. Adler
7. See Sullivan, 376 U.S. 254, at 279. Justice Brennan, writing for the majority, explained why the common law defense of truth was not constitutionally sufficient to protect
the defendant in a defamation action by a government official: "A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions - and to do so on pain of libel judgments virtually unlimited in amount - leads to. . .'self-censorship.'"
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further implies that, because of the size and strength of many media defendants, as well as the direction that libel law has taken in the last few decades, today's individual libel plaintiffs are at a disadvantage from the start of the lawsuit. Convinced that today's electronic mass media is far more likely to oppress than to be oppressed, Adler seems content to attribute the outcomes of Sharon and Westmoreland to some manifest injustice in our legal system. In evaluating the merits of both generals' libel claims, however, she neglects, either intentionally or through oversight, to give a thorough and well-balanced consideration to the legal principles which shaped the outcomes of the two cases. In particular, Adler's analysis would have benefitted considerably from a more comprehensive inquiry into the wisdom and utility of the "actual malice" standard, both in terms of the considerations which led to its acceptance by the Court, and in the context of its role in cases like Sharon and Westmoreland. Instead, Adler seems inclined to dismiss the "actual malice" requirement as an ill-conceived and poorly articulated standard, the ambiguity of which generally operates to the disadvantage of the individual libel plaintiff.8 Adler fails, for example, to discuss at any length the first amendment concerns which initially prompted the Supreme Court to articulate the "actual malice" requirement, and establish for the first time that state defamation rules are subject to constitutional limitations.9 Until the Court's landmark decision in Sullivan, states were free to define and punish libel and slander as they wished; the falsity of the statement therefore could be sufficient to impose liability, even absent any showing of "fault" - whether negligence, recklessness, or knowledge of falsity - on the part of
8. In a regrettably brief discussion of the development of libel law and the first amendment, Adler argues that Sullivan and subsequent decisions have resulted in an "imprecisely articulated and ultimately unintelligible standard" which in turn makes for jury confusion and general instability in the law. R. Adler, supra note 1, at 11-12. Adler offers a particularly compelling criticism of the manner in which the Court, subsequent to its decision in Sullivan, has defined "reckless disregard." Id. at 12. In a case which Adler does not mention by name, but clearly refers to, the Court held that the "reckless disregard" standard was met if it was shown that the defendant "in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731 (1968). This rule, Adler notes, supports an "ignorance is bliss" attitude on the part of the media, discouraging background research which might cast "serious doubt" on their stories. 9. Sullivan, 376 U.S. 254. 10. Id.
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the speaker." In short, libelous and defamatory remarks received none of the first amendment protection afforded to other forms of expression. 12 Instead, the Court effectively gave controlling weight to the states' asserted interest in protecting the reputations of its citizens. In Sullivan, however, the Court reversed itself and acknowledged that lawsuits for libel and defamation do implicate first amendment rights of expression, and that therefore the traditional common law standards governing such actions are subject to constitutional limitations. s Discerning in the first amendment a "national commitment" to fostering "uninhibited, robust and wideopen" debate on matters of public importance, 4 and recognizing that such debate requires that writers and speakers enjoy enough "breathing space" to avoid self-censorship, 3 the Court held that a public official could recover damages for libel only upon a showing that the statement in controversy was made with "'actual malice' - that is, with knowledge that it was false or with reckless disregard as to whether it was false or not."' 6 The Court subsequently extended this constitutional protection to speech concerning "public figures" who are not government officials, but who nonetheless "often play an influential role in ordering society.
17
In Gertz v. Robert Welch, Inc., 8 however, the
Court adopted a fairly narrow view of the "public figure" category and declined to extend the "actual malice" rule to cover speech about private individuals. It held, 5-4, that in libel actions brought by private figures, the first amendment does not forbid the use of a
11. Until Sullivan, the Supreme Court had always insisted that defamatory publications were not protected speech. "There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the. . .libelous. ... Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). 12. Other forms of expression afforded at least some degree of constitutional protection included insurrection, contempt and obscenity. See Sullivan, 376 U.S. at 269, where the Court implicitly recognized the inconsistency inherent in granting states' libel laws "talismanic immunity" while subjecting laws governing other, aforementioned, types of speech to constitutional limitations. 13. See Sullivan, 376 U.S. 254. 14. Sullivan, 376 U.S. at 270. The Court recognized that such debate may often in-
clude "vehement, caustic and sometimes unpleasantly sharp attacks on government and
public officials." Id.
15. Id.
16. Id. at 279-80. 17. Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). 18. 418 U.S. 323 (1974).
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simple negligence standard. 19 In reaching this decision, the Court reasoned that the extent of the constitutional privilege accorded to a speaker varies with the strength of the government's legitimate interest in protecting individual reputation. The latter interest prevails when the state acts to protect private citizens, who are typically "more vulnerable to injury. . . [and] more deserving of recovery" than are public figures.20 Initially, although a private individual could succeed on a libel claim absent a showing of actual malice, recovery in such cases was limited to "actual damages."'1 Because the state's interest in protecting its citizens' reputations extended no further than compensation for actual injury, the Court deemed it reasonable to premise recovery for presumed and punitive damages on a showing of actual malice.2 2 A few years ago, however, the Court again refined its 23 position. In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., the Court held that recovery of presumed and punitive damages is constitutionally permissible absent a showing of actual malice when the defamatory statements do not involve matters of public 2 4 In the years concern. since Sullivan, then, the Court has moved toward a compromise position, which takes into account both the state's (and the individual's) interest in protecting citizens' reputations, and society's interest in being kept fully informed about public matters by a free and unfettered press. Unfortunately, Adler's treatment of the Sharon and Westmoreland cases communicates very little of the nature, and necessity, of this compromise. Most significantly, in her criticism of the "actual malice" standard, Adler does not mention the critical distinction which current law makes between the libel claims of public figures and those of private individuals. In other words, she fails to acknowledge that if Sharon and Westmoreland had not been
19. Id. Under the Gertz rule, the states are free to decide whether they wish to establish negligence, recklessness or knowing falsity as the standard (but they may not impose strict liability). Id. 20. Id. at 345. The majority reasoned that private individuals are more vulnerable than public figures because the latter generally have "significantly greater access" to the media and can use that access to counteract false statements. Id. at 344. Similarly, private individuals are deserving of more extensive protection because, unlike public figures, they have not "voluntarily exposed themselves to increased risk of injury from defamatory falsehoods." Id. 21. Id. at 348-49. 22. Id. 23. 472 U.S. 749 (1985). 24. Id. At 761.
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intricately involved in matters of clear public interest, their claims would not have been subject to the rigorous "actual malice" standard. Precisely because the guarantees of the first amendment are 6 so clearly implicated in the areas of political speech and debate," the law affords the media greater leeway in discussing the activities of political figures than in reporting the activities of private
individuals. II.
THE CHILLING EFFECT OF LIBEL SUITS AGAINST THE MEDIA
Justice Brennan's majority opinion in Sullivan notes with particular concern the extent to which the enormous costs of numerous libel lawsuits threaten to deter the media from criticizing government conduct.2 6 Unfortunately, recent years have seen the continued persistence, and indeed aggravation, of those very conditions which the Court in Sullivan perceived as likely to produce a "chilling effect" on the media's willingness to report on controversial public issues. Notwithstanding Adler's suggestion that individual plaintiffs who are subject to the "actual malice" standard of proof tend to fare poorly in libel suits against the media,21 the number of such suits has increased dramatically during the 1980s.2" Just as importantly, the costs of defending these actions are enormous.2 9 It is estimated, for example, that CBS may have spent
25. As Justice Brennan observed in his majority opinion in Sullivan, criticism of government conduct lies at the "very center of the constitutionally protected area of free expression." 376 U.S. at 292. 26. Id. The Court rejected the argument that a defense based on truth was constitutionally sufficient to overcome these problems. "A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions - and to do so on pain of judgments virtually unlimited in amount - leads to. . .'self-censorship.'" Id. at 279. 27. R. Adler, supra note 1, at 12-13. Adler submits that even in "the unlikely event that either of them [Sharon or Westmoreland] should prevail before a jury the decision would almost certainly be reversed upon appeal." Id. In fact, this prediction may not be far off the mark. Although a 1983 study found that media defendants lose eighty-five percent of the libel cases decided by juries, Franklin, Good Names and Bad Law: A Critique of Libel Law and a Proposal, 18 U.S.F. L. Rev. 1 (1983), it has also been noted that media defendants win reversals sixty-four percent of the time because the verdicts are not supported by the law or evidence. N.Y. Times, Mar. 10, 1984, at 29, col. 1. 28. See Goodchild, Media Counteractions: Restoring the Balance to Modern Libel Law, 75 Geo. L.J. 315 (1986) (citing to a variety of sources which support the conclusion that the number of libel suits has increased in recent years). See also Smolla, Let the Author Beware: The Rejuvenation of the American Law of Libel, 132 U. Pa. L. Rev. 1 (1983) (noting dramatic proliferation of libel suits). 29. The concern expressed by courts and legal scholars over the financial burden modern litigation costs place on the press attests to the magnitude of the problem. For instance,
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[21:475
as much as five million dollars to defend the Westmoreland action.30 While most libel suits do not impose this kind of financial burden, legal fees have been estimated to average $150,000 per defamation case.3 1 Added to the high cost of defending these suits is the traditional threat of a large jury award.32 In short, the costs involved in a libel lawsuit are potentially devastating, particularly for the small, local media organization. 3 In addition to forcing media organizations to exercise more caution in their journalistic activities, the fear of such suits potentially threatens to inhibit their willingness to report on important controversial issues.' Here, again, the smaller local media organizations are likely to be most clearly impacted.3 5 The potential expense of defending a libel claim is not the only factor weighing heavily on the minds of journalists and other individuals charged with making editorial decisions. The burdens imposed by the extensive discovery processes which accompany many libel suits against the media go beyond the considerable financial costs involved. Discovery is particularly crucial to public figure plaintiffs like Sharon and Westmoreland who, as a prerequisite to recovery, must demonstrate that the media acted with actual malice, a subjective test.3 6 As a result, during this stage of the
lawsuit, the plaintiff's attorneys probe extensively into the reporter's research techniques and subjective mindset in an attempt to retrace the events prior to publication.
Judge Bork, formerly of the Court of Appeals for the District of Columbia, among others, has noted that the expenses associated with the "remarkable upsurge" in libel actions threaten to "impose a self-censorship of the press that can as effectively inhibit debate and criticism as would overt governmental regulation that the First Amendment most certainly would not permit." Ollman v. Evans, 750 F.2d 970, 996 (D.C. Cir. 1984) (Bork, J., concurring), cert. denied, 471 U.S. 1127 (1985). 30. Abrams, Why We Should Change Libel Law, N.Y. Times, Sept. 29, 1985, 5 (Magazine), at 90. 31. Id. 32. See generally Smolla, supra note 28. 33. For an account of how the ballooning costs of libel suits have increased pressure on small publications either to sell out or to close down, see Curley, "Chilling Effect": How Libel Suit Sapped the Crusading Spirit of a Small Newspaper, The Wall Street Journal, Sept. 29, 1983, at 1. 34. Id. 35. Id. 36. Actual malice is a subjective standard resting on the author's state of mind at the time of publication. Bose Corp. v. Consumer's Union of United States, Inc., 466 U.S. 485, 494, 512 (1984). This standard is met if there is sufficient evidence "that the defendant in fact entertained serious doubts as to the truth" of the publication. St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
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483
Libel discovery, therefore, tends to be a particularly lengthy and involved process, forcing media defendants to expose their editorial decisions to public scrutiny, and possibly public contempt. Leaving aside the issue of whether the media's editorial decisions are a proper subject of public inquiry,3 7 if the media perceives such disclosure as a threat to the integrity of its internal operations, it may prefer to refrain from publishing potentially controversial materials in the first place. Such self-censorship erodes the founda8 tion of a free and unfettered press." Unfortunately, in her criticism of the Sharon and Westmoreland cases, and particularly of the substantial burdens placed on the public figure libel plaintiff pursuant to the "actual malice" standard, Adler never speaks to these concerns. In implicitly advocating a relaxation of the "actual malice" standard, she fails to consider the impact such a change would have on the number of lawsuits filed against the media, on the resulting costs of defending these suits and, ultimately, on the willingness of media organizations, to aggressively cover controversial issues. These omissions may stem from the fact that the media defendants involved in the Sharon and Westmoreland cases were large corporate enterprises with considerable power and resources, and thus relatively easy targets. It may be difficult to imagine the fear of an occasional lawsuit having anything but a minor impact on the journalistic practices of large corporations such as Time or CBS. However, for smaller, local media organizations faced with the threat of growing numbers of these suits, the "chilling effect" referred to by Justice Brennan in the Sullivan decision may be anything but subtle."' III. MIXED MOTIVES: WHY LIBEL PLAINTIFFS SUE Adler appropriately observes that the "actual malice" standard makes it difficult for politically prominent individuals such as
37. The Supreme Court, in determining that the first amendment does not provide an absolute privilege for the editorial process, Herbert v. Lando, 441 U.S. 153, 176-77 (1978), essentially sanctioned such discovery. However, the Court did admonish that "judges should not hesitate to exercise appropriate control over the discovery process." Id. 38. See Sullivan, 376 U.S. at 294 (Black, J., concurring) ("state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials"); Gertz v. Robert Welch, Inc., 418 U.S. at 340-41 (discussing need to avoid media self-censorship resulting from burdensome libel suits). 39. See Curley, supra note 33.
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[21:475
Sharon and Westmoreland to prevail in libel suits against the media.40 Furthermore, as has been noted above,4 ' such suits are enormously expensive. One might well expect these factors to discourage potential plaintiffs, such as Sharon and Westmoreland, from bringing suit. In fact, as Adler acknowledges, both generals' law' yers "advised them in the strongest terms not to bring suit."42 Their decisions to sue despite this advice, and the similar decisions of many other alleged libel "victims," raises important issues regarding the motives of the typical libel plaintiff. Commentators have offered a number of explanations for the fact that, despite the high costs and the low probability of success, the number of libel suits filed in recent years has increased. 43 For one, commentators have observed that fewer prominent libel plaintiffs are paying for their own lawsuits, managing instead to solicit funds from political supporters." Moreover, individuals who bring suit against the media often do so for a variety of reasons unrelated to a desire to collect damages. 45 These may include, among others, a desire to resolve frustrations with their treatment by the media, to air their side of the story or to assail the media and obtain revenge for unfavorable coverage.'" These motives, it is argued, discount the likelihood that legal costs will deter individuals from bringing meritless suits. For the libel plaintiff's victory may "come not from a court's recognition of the validity of [the] claim, but rather through the otherwise unobtainable platform the suit
provides.'
40.
'47
R. Adler, supra note 1, at 12-13. See supra note 27 and accompanying text for a
discussion of the low success rate of libel plaintiffs. 41. 42. 43. See supra notes 29-35 and accompanying text. R. Adler, supra note 1, at 10. See supra note 28 and accompanying text.
44. Goodchild, supra note 28, at 325. Goodchild notes, for example, that the American Legal Foundation, a politically conservative organization established in 1980 to act as a media watchdog, created the Libel Prosecution Center to assist libel plaintiffs in their suits against the media. Id. "reciprocal," Goodchild notes that many libel plaintiffs have motives that go beyond pure
45. Id. In explaining why in libel suits, unlike in most other tort actions, costs are not
financial gain. Id. at 326-29. "Today's libel actions seek to accomplish collateral purposes
that provide plaintiffs with intangible benefits which outweigh litigation costs." Id. at 326. 46. Id. at 326-29.
47. Id. at 329.
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CONCLUSION: ALTERNATIVES TO THE SUPREME COURT'S CURRENT COMPROMISE
485
The varied motives of the individual libel plaintiff suggest that there are probably alternatives to the present system - with its high litigation costs and threat of even higher jury verdicts which might satisfy some of the victim's objectives without unduly "chilling" the free press. Justice. White, for example, in his concurring opinion in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,"' urged that Sullivan be rejected at least insofar as it requires a public figure to show "actual malice" before being allowed to recover any kind of damages. "9 Justice White would permit even a public figure to obtain a judgment, and perhaps "a modest amount, enough to pay his litigation expenses," even if he could not show negligence, but could show that the statement was false.50 Although the Supreme Court has declined to endorse Justice White's proposal, a similar approach has been employed by alternative dispute resolution programs across the country. 1 Whether libel controversies are resolved in the traditional courtroom setting
or in the context of an arbitration proceeding, Justice White's pro-
posal, and others like it, have some considerable advantages. At the very least, they should appeal to the large number of potential plaintiffs whose primary objective is to obtain a judgment that the statements made about them were indeed false, and thereby to clear their names. At the same time, the first amendment interests of the media would be protected. That is, the media would be subject to fewer vengeful suits and fewer devastating monetary
awards. 52 The Supreme Court recognized in Sullivan that the law governing libel actions calls for a balancing of the interest in protecting individuals' reputations with the interest in protecting the first
48. 49. 472 U.S. at 749. Id. at 765.
50. Id. at 771. A similar proposal involves the "restoration judgment." Under this reform, an individual would be entitled to appear before any court of competent jurisdiction and obtain a "restoration judgment" that the statement was false and defamatory. The defendant's state of mind and degree of fault in making the statement would not be examined, and no damages other than attorney's fees would be awarded. Franklin, supra note 27. 51. See Cranberg, Burying the Libel Hatchet: An Expert Outlines Novel Ways to Keep Disputes Out of Court, Colum. Journalism Rev., Jan.-Feb. 1988, at 49. 52. Another distinct proposal for protecting the media from frivolous and vindictive libel suits advocates the use of "counteractions" by the media. See Goodchild, supra note
28.
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amendment rights of speakers.5 3 The "actual malice" standard, as articulated in Sullivan and refined in subsequent cases, represents the current, although perhaps not final, compromise between these competing interests. Adler's criticism of the Sharon and Westmoreland cases, therefore, should have included a more well-balanced dicussion of the complex first amendment issues involved. For although the courts (and other fora for dispute resolution) will undoubtedly continue to struggle with these issues, any alternative to the "actual malice" standard will have to accomodate both of the competing interests at stake in libel controversies.
53.
376 U.S. 254.

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Columbia Journal of Law and Social Problems

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Columbia Journal of Law and Social Problems

MARIJUANA MEETS MIDDLE AMERICA

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Columbia Journal of Law and Social Problems

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Columbia Journal of Law and Social Problems

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Columbia Journal of Law and Social Problems

THE EXECUTIVE BRANCH'S ARMADA

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Broader and tougher criminal laws have accompanied the rise

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