MARIJUANA AND THE LAW: AN ANALYSIS OF EVOLVING FEDERAL DRUG POLICY

Abstract

Federal marijuana policy is constantly changing. This research analyzes the political forces behind these changes, emphasizing the policy per se rather than emphasizing the process by which policy-making occurs. The research is based on a policy-making framework that includes the following concepts: perception of the problem, pluralism, incrementalism, and policy cycles. Of major concern is the "problem perception" stage of this cycle, i.e., how perceptions of marijuana have affected policies toward that drug. Other drugs, particularly opiates, are analyzed only to the extent they affect marijuana policy. In the early 1800's drugs were widely used in America, and they were not perceived as a problem. Later, they were perceived as a medical problem. The Harrison Act of 1914 reflected these medical perceptions. But narcotics soon were perceived as a source of crime, and federal narcotics officials, through court procedures, used the Harrison Act to apply criminal sanctions to narcotics users, and to exclude doctors in private practice from treating drugs as a medical problem. In the 1930's marijuana was perceived by federal officials as a narcotic drug, and marijuana consumption was perceived as a criminal phenomenon. Therefore, the Marijuana Tax Act of 1937 was modeled after the Harrison Act of 1914, with penalties for marijuana violations similar to those of narcotics violations. In 1951 and 1956, the Federal Bureau of Narcotics successfully lobbied to increase the criminal sanctions for marijuana violations, despite opposition presented by the Department of Health, Education, and Welfare. In the 1960's new perceptions began to emerge. The 1962 White House Conference called by President Kennedy critically evaluated existing policies toward narcotics and marijuana, and it suggested that drug consumption should be treated as a medical and social problem rather than as a criminal problem. A content analysis of Presidential messages in the 1960's indicates President Kennedy probably viewed drugs as a medical problem, and Presidents Johnson and Nixon viewed drugs as a criminal problem. The 1960's saw changes in perceptions toward drugs that subsequently led to policy changes. The Narcotic Addict Rehabilitation Act of 1966 provided for emphasis on medical treatment rather than criminal sanctions for narcotics users. This act reflects a change in perceptions of marijuana by allowing probation and suspended sentences for marijuana violations, thus drawing a distinction between the consequences of narcotics consumption and marijuana consumption. The Marijuana Tax Act of 1937 was held to be a valid tax act by the Supreme Court, Litigants continued to attack the constitutionality of the act in their attempts to reverse convictions for violations of marijuana laws. Arguments based on freedom of religion, the right to privacy, the Equal Protection Clause, and cruel and unusual punishment were rejected. Timothy Leary's conviction was overturned, based on a self-incrimination argument, but the Court declined to expand this ruling. The Comprehensive Drug Abuse Prevention and Control Act of 1970 includes provisions indicating a change in perceptions toward marijuana. Of particular importance is the provision allowing federal courts to grant probation for certain marijuana offenses, and then to expunge the offender's record of any reference to criminal sanctions for such offenses. Changes in marijuana policy have been incremental, even in recent legislation. Two groups have been responsible for most of the political conflict and policy related to marijuana. These are the Bureau of Narcotics and the Department of Health, Education, and Welfare. Private groups have been vocal but not influential. Litigants have had limited success in courts due to the lack of a united effort.