Criminal Justice: Marijuana Before the Bench

The social value of discouraging crimes against others is clear; as a result, there is little resistance to laws that prohibit murder, robbery or rape.

The social value of deterring crimes against oneself is more debatable — especially when there is no proof that the outlawed conduct causes harm. Most lawyers agree, therefore, that laws prohibiting private acts such as drinking are an unnecessary and unwarranted restraint on individual freedom, and little more than an attempt to legislate morality. Now that argument—and others —is being used in a major attack on federal and state laws against marijuana.

In Oregon, a pharmacy board has just completed hearings on whether to recommend exemption of marijuana from the state narcotics law, and will deliver a decision next month. In Rhode Island, testimony pro and con has been heard on the constitutionality of the state marijuana restrictions in the trial of three students for selling pot; a decision is due shortly. New York State is preparing to try Literary Critic Leslie Fiedler and his wife next week for maintaining premises where marijuana was used. In Michigan, a bill designed to make marijuana lawful was introduced at the last session of the legislature and is awaiting consideration.

Even Death. Last week the most publicized test case so far got under way at a pretrial hearing in Massachusetts. Mounting the attack was an outspoken, cigar-chewing attorney named Joseph Oteri. A 36-year-old ex-Marine captain who currently serves as counsel for the National Association of Police Officers, Oteri is not the sort usually expected to be behind such causes, but the marijuana law “gripes me,” he explains. “The hazards of marijuana are a myth.” As a means of proving it, he took on the defense of Ivan Weiss and Joseph Leis, two college dropouts charged with possession of marijuana with intent to sell it. In court last week, Oteri could not get their names straight. But otherwise, he gave them a painstakingly prepared defense—the product of six months of research.

The first marijuana law in the U.S. was passed by Congress in 1937. Use of the hallucinogen was then centered in New Orleans, and little was known about it. Scare stories about marijuana leading to a crime wave prompted Congress to provide stiff penalties: up to five years for any pot offense. Now the maximum is 40 years. No probation is allowed for second offenders and a minimum sentence of five years is mandatory. In most states, no difference was seen between pot and such other drugs as heroin and opium; all were usually lumped under the same general narcotic law with the result that in Georgia, to take the most extreme example, selling marijuana to minors can bring the death penalty.

Old-Fashioned. Available medical knowledge, argues Oteri, makes such a lack of distinction hopelessly oldfashioned. For one thing, LSD, which was not around when pot was banned, will earn the user or seller far less of a sentence than marijuana, though LSD is known to produce dangerous and long-range effects and pot is not. Furthermore, said Oteri, pot is not really dangerous at all, and he introduced a series of expert witnesses to back up his contention. Almost everyone is now agreed that marijuana is neither a true narcotic nor addictive, but Oteri’s experts went further. They absolved pot of causing practically any harm.

Dr. Joel Fort, a San Francisco psychiatrist and frequent marijuana defender, stated that the drug causes no basic personality change, does not lead to sexual excess, and does not lead to progression to other drugs. Dr. Nicholas Malle-son, member of Britain’s advisory commission on drug dependence and currently a visiting professor at M.I.T., agreed and added that it is not even psychologically addictive, “unless you would call my desire to go home after a day’s work to have a gin and talk to my wife a psychologically dependent habit.”

Reform, Not a Wipeout. Rebutting such pro-pot statements, Dr. Donald Louria, chairman of the New York State Council on Drug Addiction, testified that marijuana can induce various psychoses, undermine already unstable personalities, and cause acute intoxication. He also directly contradicted Dr. Fort and contended that pot does tend to lead to use of other drugs. Both sides plan to field at least a dozen more experts before the hearing is over. Only then will the judge decide on Oteri’s motion to declare the Massachusetts marijuana law unconstitutional on grounds that it is “irrational and arbitrary,” and that it goes beyond the regulatory power of the state. Oteri also contends that it infringes on the individual’s right to privacy and that it violates equal protection of the laws since alcohol, tobacco and other similarly dangerous drugs are not similarly barred. Finally, he feels that it subjects citizens to “cruel and unusual and excessive punishment.”

Whatever the finding on Oteri’s motion, antimarijuana laws will almost certainly not be wiped out by the current attack. In fact, only a few of marijuana’s lawyer supporters favor untrammeled availability of pot. Most simply want to ease what they regard as Draconian penalties. Some reform does seem inevitable since even Food and Drug Administration Chief James Goddard agrees that the penalties for users are too severe.