United States v. Maiden

• Decision Date: 27 February 1973
• Docket Number: Crim. No. H-315.
• Citation: 355 F. Supp. 743
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Harry Tobin MAIDEN et al.

355 F. Supp. 743

UNITED STATES of America v. Harry Tobin MAIDEN et al.

Crim. No. H-315.

United States District Court, D. Connecticut.

February 27, 1973.

Jon A. Sale, Asst. U. S. Atty., Hartford, Conn., for plaintiff.

John R. Williams, New Haven, Conn., John R. Gamm, Hamden, Conn., Thomas D. Clifford, Federal Public Defender, New Haven, Conn., R. T. Meehan, Bridgeport, Conn., Mark Soler, Student Intern, New Haven, Conn., for defendants.

MEMORANDUM OF DECISION ON MOTION TO DISMISS

NEWMAN, District Judge.

This motion to dismiss an indictment raises a host of broad constitutional challenges to the criminalization of marijuana. Defendants are charged in a three-count indictment with three offenses relating to marijuana. Count one charges they "knowingly and intentionally possessed, with intent to distribute and dispense" 500 pounds of marijuana; count two charges they "knowingly and intentionally distributed and dispensed" 180 pounds of marijuana; and count three charges they conspired to commit the substantive offenses, 21 U.S.C. §§ 841, 846.

The Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 91-513, 84 Stat. 1242, prohibits the distribution and possession of marijuana through a set of related provisions. In § 101 of the Act, Congress has found that local distribution of controlled substances has "a substantial and direct effect upon interstate commerce." 21 U.S. C. § 801. Section 202 of the Act establishes five schedules of controlled substances and places marijuana in Schedule I. 21 U.S.C. § 812(c), Schedule I(c)(10). Section 401 of the Act provides penalties for anyone who distributes or possesses with intent to distribute a controlled substance. 21 U.S.C. § 841(a)(1). The maximum penalty for distribution or possession, with intent to distribute, of any controlled substance in Schedule I which is not a narcotic drug is imprisonment for five years and a fine of $15,000, 21 U.S.C. § 841(b)(1)(B), except that the maximum penalty for distributing a "small amount" of marijuana "for no remuneration" is imprisonment for one year and a fine of $5,000. 21 U.S.C. §§ 841(b)(4), 844(a). Section 102 of the Act defines "marihuana" and "narcotic drug" in such a way that the former is not included within the latter. 21 U.S.C. § 802(15), (16).

In support of their constitutional challenges to these provisions, defendants presented impressive testimony from acknowledged drug experts, including Dr. Lester Grinspoon, professor of psychiatry at the Harvard Medical School, and Dr. Joel Fort, of the University of California, a longtime consultant to the World Health Organization. Their testimony established the following points. Marijuana is a relatively mild drug. Its short-term physical effects are a slight lowering of blood pressure, a slight increase in pulse rate, and a reddening of the whites of the eyes. Its short-term psychological effects are a feeling of euphoria, a sense of, but not necessarily the actuality of, enhanced perceptions, some distortion of temporal sense, enhanced appetite, brief impairment of memory, and, among a small number of users, some psychological disturbances such as unpleasant feelings of anxiety, an accentuation of one's neuroses, and even paranoia. The drug has not been known to cause long-term physical or phychological effects. It is not addicting in the precise sense that it does not create tolerance, i. e., adaptation by the body so that increasing doses are required to produce the desired effect, nor does it produce withdrawal illness, i. e., physical symptoms occurring when use of the drug is suspended. Its use creates some psychological dependence in the same manner that a person becomes habituated to various substances and routines and becomes somewhat irritable and restless when practice of the habit is interrupted. The drug does not induce a user to commit crimes or violent acts. While many users of other drugs have used marijuana, only a small percentage of marijuana users progress to use of other drugs, and there is nothing about marijuana intrinsically that leads to use of more dangerous drugs.

The doctors testified not only that the above conclusions were correct but also that there are no scientifically reliable studies to support contrary views. The government offered no evidence. Thus the record established here can lead to no other significant conclusions than that marijuana is a relatively mild mind-altering drug, that its principal effect is to induce short-term euphoria, and that it has the capability to produce psychological disturbances, occasionally severe, among a small number of users.

The balance of defendants' evidence established that other drugs, both those included under the Act as controlled substances such as heroin, barbiturates, amphetamines, and LSD, and those not covered by the Act, such as alcohol, nicotine, and caffeine, all have some adverse effect on physical or mental health or both that either are not associated with marijuana or are more serious, in some respects, than the effects of marijuana.

From these facts defendants contend that the Act's provisions penalizing the marijuana offenses charged in the indictment are unconstitutional in that they abridge the defendants' right to privacy, deny them due process of law and the equal protection of the laws, and impose upon them cruel and unusual punishment.

A constitutional right to privacy, immune from governmental abridgement, has been recognized in some contexts, such as private possession of obscene material in one's home, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), and a woman's decision with medical advice to seek an abortion in the early stage of pregnancy, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (Jan. 22, 1973). Defendants contend for an equivalent right to use marijuana, relying on Stanley's assertion of the "right to satisfy one's intellectual and emotional needs in the privacy of one's own home." 394 U.S. at 565, 89 S.Ct. at 1248. The analogy is rendered doubtful by Stanley's disclaimer of any limitation on the power of government to make possession of narcotics a crime. 394 U.S. at 568, n. 11, 89 S.Ct. 1243.¹ Moreover, the abortion decision explicitly declined to recognize a generalized right to use one's body as one pleases. 410 U.S. 113, 93 S.Ct. 705. See Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905).

But even if there were a right to be free of governmental intrusion to punish possession and use of marijuana in the privacy of one's home, the Supreme Court has not indicated that such a protection would provide similar insulation for distribution. "The focus of Stanley was on freedom of mind and thought and on the privacy of one's home. It does not require that we fashion or recognize a constitutional right . . . to distribute or sell . . . ." United States v. Reidel, 402 U.S. 351, 356, 91 S.Ct. 1410, 1412, 28 L.Ed.2d 813 (1971). Thus the Supreme Court was unwilling to predicate a general right to receive and distribute upon a right to possess, an extension thus far developed only as to items protected by the First Amendment. See, e. g., Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938). As to written or oral communications the First Amendment extends protection not only to the content of the material but also to the process of communication. No similar protection has been accorded distribution of substances that lack First Amendment protection.² Whatever logic inheres in the proposition that a right to possess requires a corollary right to receive and distribute is dispelled upon closer analysis of the right to possess. As Stanley and Reidel make clear, what is being safeguarded by recognition of a "right to private possession" is really not possession of an item, much less access to it, but simply protection against unwarranted governmental intrusion into one's privacy to determine if the item is there. Valuable as that protection is, it does not carry with it any corresponding right to the distribution of what a person may wish to possess within his home. His privacy remains unimpaired whether or not he is able to secure possession. These defendants are not charged with use of marijuana or possession for private use, but with distribution and possession with intent to distribute.

Next defendants attack as arbitrary the provisions of federal law that accomplish the proscription of marijuana distribution. They contend the provisions are irrational in omitting alcohol and nicotine, in providing equivalent penalties for marijuana and for such drugs as amphetamines, barbiturates and LSD, and in classifying marijuana in Schedule I along with heroin.

The premise of defendants' first two contentions is that the Equal Protection Clause requires legislators to scale penalties in proportion to the danger of the conduct penalized. The premise is not sound. In setting penalties, Congress is not limited to an assessment of harm. Even if barbiturates and amphetamines pose greater health hazards than marijuana, Congress is entitled to conclude that the pervasiveness of marijuana distribution justifies an equivalent maximum penalty or that such penal purposes as general deterrence will be appropriately served by such a penalty. Nor is Congress required to take an all or nothing approach to drug regulation. Marijuana, however relatively slight a health hazard it may be to the total population, is a drug that can cause euphoria at low doses and hallucinogenic reaction at higher doses among most users, and a severe psychological disturbance among a few users. Congress can rationally conclude that interstate traffic in such a drug should be prohibited by a maximum five-year penalty.³ This judgment is not rendered irrational because a...