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February 11, 1980

Griffin B. BELL, et al., Defendants.

The opinion of the court was delivered by: TAMM

In this action, the National Organization for The Reform of Marijuana Laws (NORML or plaintiff) challenges the provisions of the Controlled Substances Act, 21 U.S.C. §§ 801-904 (1976) (CSA or Act), that prohibit the private possession and use of marijuana. Plaintiff asserts that the Act violates the Constitution's guarantees of privacy and equal protection and its prohibition against cruel and unusual punishment. Finding the Act to be a reasonable congressional attempt to deal with a difficult social problem, we must reject this challenge and leave NORML to seek redress through political channels.

 I. The Litigation

 NORML filed this action October 10, 1973, *fn1" seeking a declaratory judgment that the CSA and District of Columbia Uniform Narcotic Drug Act, D.C.Code §§ 33-401 to 425 (1973), are unconstitutional in prohibiting the private possession and use of marijuana and requesting a permanent injunction enjoining enforcement of those statutes. *fn2" This court stayed the proceedings for a year while NORML tried to obtain administrative relief through a proceeding to reclassify marijuana. *fn3" After the stay was vacated, the parties battled over preliminary motions for two years. Finally, in June 1978, this court heard five days of evidentiary hearings before Judge Aubrey Robinson. Both sides presented live and documentary evidence concerning the effects of marijuana. Shortly thereafter, the parties submitted proposed findings of fact on the effects of marijuana and legal arguments for the court's consideration.

 II. The Controlled Substances Act

 Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970 (DAPCA), 21 U.S.C. §§ 801-966 (1976), to fight this nation's growing drug problem. The act was designed to

deal in a comprehensive fashion with the growing menace of drug abuse in the United States (1) through providing authority for increased efforts in drug abuse prevention and rehabilitation of users, (2) through providing more effective means for law enforcement aspects of drug abuse prevention and control, and (3) by providing for an overall balanced scheme of criminal penalties for offenses involving drugs.

 H.R.Rep. No. 1444, 91st Cong., 2d Sess. 1 (hereinafter cited as 1970 House Report), reprinted in (1970) U.S. Code Cong. & Admin. News, pp. 4566, 4567. It ended the patchwork federal effort against drug abuse and signaled a national commitment to deal with this problem by committing federal funds for rehabilitation programs. *fn4"

 In addition to the rehabilitation programs, DAPCA also revised completely the federal drug laws dealing with drug control. *fn5" Title II, called the Controlled Substances Act (CSA), establishes five schedules for classifying controlled substances according to specified criteria. *fn6" Two criteria the potential for abuse and the medical applications of a drug are the major bases for classification, *fn7" along with certain social and medical information. 21 U.S.C. §§ 811(c), 812(b). *fn8" Congress, on the basis of information gathered from extensive hearings, *fn9" made the initial classifications. Recognizing that scientific information concerning controlled substances would change, Congress empowered the Attorney General to hear petitions for the reclassification or removal of drugs from the schedules. Id. § 811. *fn10"

 Congress also has revamped the penalties for distribution or possession of controlled substances. Heavy penalties up to fifteen years and a $ 25,000 fine are authorized for violators who manufacture or distribute Schedule I or II narcotic *fn11" drugs. 21 U.S.C. § 841(b)(1)(A). The manufacture or distribution of a nonnarcotic Schedule I or II substance, or a Schedule III drug, carries a possible five year and $ 15,000 penalty. Id. § 841(b)(1)(B). The penalties for violations involving Schedules IV and V are correspondingly lower. Penalties double for second offenses.

 In setting the penalties, Congress sought to reduce drug abuse by deterring suppliers through stiff penalties for drug distribution. Section 848 of DAPCA contains a special minimum term of ten years and a possible fine of $ 100,000 for anyone convicted of engaging in a "continuing criminal enterprise" involving five or more people in a series of drug violations. Id. § 848. *fn12" These heavier penalties for distribution, combined with strict registration requirements for manufacturers and researchers of Schedule I and II substances, id. §§ 821-29, are designed to reduce trafficking in dangerous drugs.

 Penalties for possession are not so severe. Possession of any controlled substance carries a maximum sentence of one year and a $ 5,000 fine, with no distinctions being drawn among drugs in different schedules. These penalties again double for a second offense. None of these penalties are mandatory, however, and this flexibility lets a judge impose a sentence that takes account of individual circumstances. In addition, a court may place first offenders on probation for one year; upon successful completion of probation, court proceedings are dismissed without an adjudication of guilt, and the conviction is not placed on the individual's record. Id. § 844(b)(1). A special provision places those dealing in a small amount of marijuana for no compensation under the possession penalties; thus, someone giving small amounts to friends is not subject to the stiff penalties for distribution. Id. § 841(b)(4).

 III. Marijuana

 Marijuana (cannabis sativa L.) is a psychoactive drug made of the leaves, flowers, and stems of the Indian Hemp plant. It derives its psychoactive properties from delta-9-tetrahydrocannabinol (THC), which exists in varying concentrations in the plant, depending on its origin, growing conditions, and cultivation. Marijuana and Health: A Report to the Congress from the Secretary, Department of Health, Education, and Welfare 13-14 (1971) (hereinafter cited as 1971 HEW Report). The concentration of THC within the sections of the plant also varies widely. The resin contains the greatest concentration of THC; smaller amounts are found, respectively, in the flowers, the leaves, and the stems. The most potent form of the drug, hashish, is prepared from the resins of the flowers and contains 5-12% THC. Marijuana generally found in the United States is weaker, with around 1% THC. National Commission on Marihuana and Drug Abuse, Marihuana: A Signal of Misunderstanding 50-51 (1972) (hereinafter cited as Signal of Misunderstanding).

 The drug produces a number of physiological and psychological effects. The short-term physiological effects have been well documented. They are reddening of the whites of the eye, dryness in the mouth, increased pulse rate, and impaired motor responses. *fn13" Marihuana and Health: Fifth Annual Report to the U.S. Congress from the Secretary of Health, Education, and Welfare 84 (1975) (hereinafter cited as 1975 HEW Report); 1971 HEW Report, supra at 57-58. The short-term psychological effects are equally well known:

At low, usual "social" doses, the intoxicated individual may experience an increased sense of well-being; initial restlessness and hilarity followed by a dreamy, carefree state of relaxation; alteration of sensory perceptions including expansion of space and time; and a more vivid sense of touch, sight, smell, taste, and sound; a feeling of hunger, especially a craving for sweets; and subtle changes in thought formation and expression. To an unknowing observer, an individual in this state of consciousness would not appear noticeably different from his normal state.
At higher, moderate doses, these same reactions are intensified . . . . The individual may experience rapidly changing emotions, changing sensory imagery, dulling of attention, more altered thought formation and expression such as fragmented thought, flight of ideas, impaired immediate memory, disturbed associations, altered sense of self-identity and, to some, a perceived feeling of enhanced insight.
At very high doses, psychotomimetic phenomena may be experienced. These include distortions of body image, loss of personal identity, sensory and mental illusions, fantasies and hallucinations.

 Signal of Misunderstanding, supra at 56. The intensity of these reactions depends on dosage, method of use, metabolism, attitude and setting, tolerance, duration of use, and pattern of use. Id. at 50-53. *fn14"

 The long-term effects of marijuana are less well known. Studies have dispelled many of the myths about the drug: marijuana is not a narcotic, not addictive, *fn15" and generally not a stepping-stone to other, more serious drugs. *fn16" Furthermore, it causes neither aggressive behavior nor insanity. L. Grinspoon, Marijuana Reconsidered 230-322 (2d ed. 1977).

 Despite these findings, questions about long-term use remain. Studies have indicated that marijuana may affect adversely the lungs and the endocrine, the immunity, and the cardiovascular systems. Some of these studies are disputed, see L. Grinspoon, supra at 376, but an examination of these adverse findings illustrates the important questions still remaining about marijuana use.

 Smoking marijuana may contribute to lung disorders in the same way as tobacco. Marijuana smoke contains more tar than tobacco smoke, and the typical user inhales this smoke in his lungs and holds it there to derive the greatest effect from the THC. J. Graham, Cannabis and Health 283 (1976). The smoke irritates the lung tissue, and with heavy long-term use, may impair lung functions. 1976 HEW Report, supra at 14-15.

 Marijuana may also affect the levels of the male sex hormone testosterone and other pituitary hormones. Several studies have found lower levels of testosterone after marijuana use. Even where lower testosterone levels were found, they were still within acceptable limits, 1976 HEW Report, supra at 15; L. Grinspoon, supra at 388-89, but the possibility of damage from long-term, heavy use still exists. Researchers are particularly concerned about marijuana's effects on pubertal males, *fn17" males with impaired sexual functioning, and pregnant women. 1975 HEW Report, supra at 81-82.

 In a 1974 study, scientists found evidence that marijuana use impaired the functioning of the immunity system, causing a reduction in the white blood cell count. 1976 HEW Report, supra at 16. Later studies reached similar conclusions, 1975 HEW Report, supra at 110, while others have found no such reduction. More study of this question is needed, but conducting research in this and other areas involving physiological changes from marijuana is extremely difficult, for researchers cannot even agree on appropriate procedures. See L. Grinspoon, supra at 389.

 Marijuana affects the cardiovascular system by accelerating the heart rate. Studies also indicate that it may weaken temporarily contractions of heart muscle, posing dangers for smokers with heart disease or abnormalities. 1976 HEW Report, supra at 14. Studies on healthy young men have revealed no cardiovascular effects, but those with heart problems may experience pain due to less efficient delivery of oxygen in the blood. 1975 HEW Report, supra at 80. The long-range consequences of these temporary changes in the cardiovascular system are difficult to assess, but they may be significant and require further study.

 In addition to these problems, other tests have found negative aspects to marijuana use. Amotivational difficulties and changes in brain cells, chromosomes, and cell metabolism have been noted in various studies. 1976 HEW Report, supra at 16-20; 1975 HEW Report, supra at 82-83; Signal of Misunderstanding, supra at 61-65. These findings have not been corroborated, however, and other research has reached contradictory conclusions. See L. Grinspoon, supra at 54, 287-90, 387, 390-91. As with the other areas, these questions demand further scientific study to determine conclusively the long-term effects of marijuana. Although we now know that marijuana is not the "killer" drug, as branded in the past, its long-term effects are still an open question and must be approached as unresolved. These lingering questions must be kept in mind in considering the legal issues.

 IV. Legal Issues

 A. Right of ...

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