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The Forbidden Fruit and the Tree of Knowledge
THE FORBIDDEN FRUIT AND THE TREE OF KNOWLEDGE: AN INQUIRY INTO THE LEGAL HISTORY OF AMERICAN MARIJUANA PROHIBITION
Richard J. Bonnie & Charles H. Whitebread, II
VIII. THE PUBLIC DISCOVERS THE TRUTH ABOUT MARIJUANA
We need not belabor the point, but sometime after 1965 the wisdom of the
marijuana laws suddenly became dinner-table conversation in most American middle-class
homes along with the Indochina war and campus dissent. Many sons and daughters, and even
mothers and fathers, of the middle class had tried the drug, and those who had not were
certainly familiar with "pot" and the law. The medical profession finally
commenced a research effort to determine who was right-the user who said the drug was a
harmless pleasant euphoriant or the lawmakers, who by their actions had condemned it as a
noxious cause of crime, addiction and insanity.
A. Marijuana and the Masses
Although marijuana arrests arid seizures hit their all-time low point in 1960,1 the middle and late sixties witnessed a revolution in marijuana use. Vast numbers of people have recently adopted the drug as their principal euphoriant; however, by all estimates, the new users are the sons and daughters of the middle class, not the ethnic minorities and ghetto residents formerly associated with marijuana.2 Student marijuana use is now so common that it has been associated in the public eye with the overall campus life style.3 Accompanying the growth of widespread marijuana use on campus has been an increasing experimentation with the drug by intellectuals, professors, young professionals and members of several other social groups who would never have considered using the drug ten years ago.4
Dr. Stanley F. Yolles, former Director of the National Institute of Mental Health, testifying before a Senate subcommittee, said, "A conservative estimate of persons in the United States, both Juvenile and adult, who have used marihuana, at least once, is about 8 million and may be as high as 12 million people."5 Other estimates have run as high as twenty to twenty-five million users.6 This vast increase in the number of people using marijuana seems to have begun in the early and middle sixties. It is likely that this new use pattern was initially precipitated by the publicity surrounding the LSD experimentation of Doctors Alpert and Leary at Harvard in 1963.7 As a growing segment of the academic fringe began to preach consciousness-expansion, students began to find marijuana available on campus. From that point the phenomenon snowballed. As more novice marijuana users reported no ill effects from its use, more students tried it, and in turn those who used and enjoyed the drug began to "turn on" those who had not. By 1970, some campuses reported that over seventy percent of the student body were users.8 More recently, marijuana use spread beyond the student subculture; reportedly its use has become common even among young professionals on Wall Street.9 Moreover, since it is readily available and widely used in Vietnam, marijuana has become popular with many soldiers.10
3 See, e.g., R. DEBoLD& R. LEAF, LSD,MAN AND SOCIETY (1967); R. GOLDSTEIN, ONE IN SEVEN: DRUGS ON CAMPUS (1966); K. KENNISTON, THE UNCOMMITrED: ALIENATED YOUTH INAMERICAN SOCIETY (1967); D, LOURIA, THEDRUG SCENE (1968); L. SIMMONS & B. WINEGRAD, IT'S HAPPENING (1967).
4 See Malabre, Drugs on the Job, Wall St. J., May 4, 1970, at 1, Col. 6. This article deals not only with drug use by professionals but also details the increasing trend of drug use on the job.
5 Hearings Before the Subcomm. to Investigate juvenile Delinquency of the Senate Comm. on the Judiciary, 91st Cong., 1St Sess. 267 (1969) [hereinafter cited as Narcotics Legislation Hearings].
6 Id. at 268.
7 See R. DEBOLD & R. LEAF, LSD, MAN AND SOCIETY 130-31 (1967).
8 TIME, Sept. 26, 1969, at 69; Yale Daily News, Jan. 14, 1970.
9 Malabre, supra note 4.
10 D. LOURIA, THE DRUG SCENE 10 (1968).
The general public is clearly aware that there has been both a vast increase in the number of users and a shift from lower- to middle-class use of the drug. These great changes in the nature of marijuana use have had important social consequences. First, with the sharp rise in the number of users and the tendency of marijuana users to share common life styles and often political opinions, the drug has become associated ill the past few years with a major counter-culture, Many proponents of that counter-culture have contended that the illegal status of marijuana -which puts large numbers of people oil the wrong side of the criminal law-is the most significant unifying and recruiting agent for the New Left and the other political and social causes of the late sixties." Some New Left leaders have gone so far as to oppose reduction in the penalties for marijuana possession because they feel severe penalties aid their recruiting ends by making marijuana users outraged against a society that overacts so strongly to a nonexistent danger." We feel the general disrespect for marijuana laws may be causing a dangerous disrespect for all laws in a sizeable segment of the population. The credibility of government suffers on all issues when its handling of the use of this drug seems to so many so far removed from reality. This opinion is supported by the increasing medical evidence that the dangers of tile drug are de minimus.
Secondly, the new middle-class use of marijuana has induced the first significant medical inquiry into the nature of the drug; has spawned increasing numbers of challenges to the constitutionality of marijuana laws and penalties, and has spurred the passage of more lenient legislation.
One commentator has stated:
Nobody cared when it was a ghetto problem. Marijuana -well, it was used by jazz musicians or the lower class, so you didn't care if they got 2-to-20 years. But when a nice, middle-class girl or boy in college gets busted for the same thing, then the whole community sits up and takes notice. And that's the name of the game today. The problem has begun to come home to roost-in all strata of society, in suburbs, in middle-class homes, in the colleges, suddenly, the punitive, vindictive approach was touching- all classes of society. And now the most exciting thing that's really happening is the change in attitude by the people. Now we have a willingness to examine the problem, as to whether it's an experimentation, or an illness rather than "an evil." With this change I think we can come to a more rational approach to methods of drug control.13
Without doubt, the new class of users has successfully demanded more favorable attention from the legislatures and the courts than the lower class could have attracted. In fact, even the slightest circumscription of the reach of a state marijuana law is now national news.14
A third result of the widespread use of marijuana has been a substantial challenge to the traditional picture of the national marijuana trade. Over the past three decades, law enforcement officials continued to convince legislators that the traffic in marijuana was controlled by professional criminals.15 Confronted with this portrait of the marijuana trade, legislators naturally stereotyped the "seller" as the vicious criminal pushing his wares for high profit and felt that extraordinarily harsh penalties were justified for sellers.16 From several recent studies it appears that the structure of marijuana traffic bears little or no relation to the traditional stereotype. In a recent survey of 204 users it was found that 44 percent had sold to friends at least once. Many casual users sell to leave themselves enough profit to cover the amount of their own use. 17 The study further finds that even at the very top, profits are too small and the product too bulky to interest the criminal class that probably underwrites sales of heroin and other "hard drugs." 18 Thus even at the top, amateurs-composed generally of the students, young professionals and soldiers who constitute the users-are the main source of the drug.19 It is also important to note that marijuana is typically sold by the ounce20 rather than by the cigarette as was traditionally assumed. Thus, even the relatively casual experimenter was likely to have at least an ounce of the drug in his possession.
B. Enforcement of the Marijuana Laws: 1960-1970
As a result of the rapid spread of marijuana use, full enforcement of the marijuana laws has become impossible.21 By 1967 the Federal Bureau of Narcotics had 299 agents, roughly 50 more than in 1956.22 In the same period the use of marijuana probably increased 1,000 fold. It seems obvious from both FBN statistics and the best available state and local statistics that two enforcement patterns emerged in the sixties: concentration on "sellers" and selective enforcement.
Since 1960 the FBN and major state and municipal narcotic squads have concentrated on the larger sellers. In the early sixties this trend was less pronounced,23 but by 1968 the Commissioner of the FBN said that 75 percent of federal marijuana arrests were of dealers and that even the remaining 25 percent were sellers but were charged with possession as a result of plea bargains. Statistics from California show the same concentration on sellers nevertheless the California bureau found that most of these sellers were young and first offenders.26 Thus, at least by 1968 it became clear that sellers were quite often neophytes.
At the same time that the police have abandoned full enforcement for concentration on dealers, enforcement of the laws has remained necessarily haphazard and somewhat selective. Since marijuana use has become so common, there are certain student and hippy communities in which the police could arrest nearly everyone. Here the problem of selective enforcement necessarily arises-the police arrest those they dislike for other reasons, either political disagreement or suspicion of use of other drugs. This inevitable practice, although perhaps not consciously planned, has brought outcry from some victimized communities.27 This policy-if not a policy by the police at least a perception by the hippies-of selective enforcement has provided them increased impetus toward the anti-establishment life style they have adopted. Their attitude is aggravated when the police engage in particularly aggressive tactics, such as use of informers, to trap the offenders. 28
By 1970, the unenforceability of the marijuana laws was most clearly evidenced by the
failure of President Nixon's Operation Intercept which was designed to seal off the
Mexican border and the supply of marijuana coming into the United States from Mexico.29
Both national and international tensions led to the failure of the "Noble
Experiment." By now, the marijuana trade is so scattered and at the same time so
fragmented (with no real hierarchy in the trade) that the unenforceability of these laws
has reached Prohibition proportions.
C. Emergence of Medical Opinion
One of the most significant causes of widespread middle-class use of marijuana was the lack of any medical proof of the allegedly evil effects of its use. In fact, what authoritative studies had been conducted up to this time were inconsistent with the assumptions underlying anti-marijuana legislation. In this situation, users viewed themselves as experimenters with a mild euphoriant, not criminals endangering themselves or society at large. The inevitable consequence was increased medical inquiry into the effects of the drug, beginning in about 1967.31
Concurrently, the National Institute of Mental Health significantly Increased its funding for grants and contracts for marijuana research.32
Despite this intensified inquiry, uncertainty about the effects of the drug persists. There are several major research obstacles responsible for continued absence of reliable research. After outlining the impediments to conclusive findings, we shall extract from the existing studies the present state of medical knowledge.
1. Research Obstacles
The major obstacle is the nature of the marijuana plant itself. Marijana is a derivative of the plant Cannabis Sativa, commonly denoted the hemp plant. It is classified as a dioecious plant, that is, the male reproductive parts are on one individual plant and the female parts are on another. The differentiation of the male and female plants is exceedingly significant because the chemical compounds responsible for the euphoric effect of marijuana are found primarily in the sticky resin that covers the unfertilized female flowers and adjacent leaves. The male plant may contain a small amount of this active resin, but it is grown mainly for hemp fiber.33
The hemp plant yields three rough grades of intoxicating substances, the least potent of which is "marijuana." 34 Yet, because the classifications are imprecise, confusion is engendered by attributing to "marijuana" the effects produced by the excessive use of the more potent forms of cannabis.35 In addition, the psychic potency of the plant differs depending upon where the marijuana is grown, 36 and upon cultivation variables such as occurrence of fertilization and time of harvesting:
If the male plants are not removed and fertilization occurs, the female plants which carry the main intoxicating properties are considerably weakened in that respect. In addition, unless harvesting is carried out immediately before the blossoming of the flowers there is further weakening and variation in the potency of the produce.37
It is interesting to note in this connection that the marijuana used in the United States is among the weakest in the world.38 These factors frustrate the creation of a standardized dosage in any given experiment and preclude the comparison of the results of independent studies.39
In addition to the problems engendered by the great variance in potency and dosage, meaningful marijuana research also inhibited by differences in means of consumption. Since standardized doses are generally considered impossible if the drug is smoked,40 most studies, including the La Guardia Report, are based upon oral administration of marijuana to the subjects. Yet smoking is the method of consumption among nearly all American users. Furthermore, standardized dosage is not even assured by the oral method since "little is known about the gastrointestinal absorption of the highly water-soluble cannabinals in man." 41 Finally, "there is considerable indirect evidence from users that the quality of the intoxication is different when marijuana or its preparations are ingested rather than smoked. In particular, ingestion seems to cause more powerful effects . . . . " 42
2. Current Medical Knowledge
It is perhaps best to begin with the medical data concerning the traditional allegations about marijuana.
(a) The Myths.-First, it is universally accepted among medical authorities that marijuana is not physically habit-forming.43 Although some researchers have asserted that a psychological dependence may result from continued use of the drug, this hypothesis has not been established and its relevance has been questioned. One authority has noted that "habituation to marihuana is not as strong as to tobacco or to alcohol." 44 Another has commented that "[a] psychological dependence and desire for the drug may occur, but this is inconsistent and is not uncontrollable.... Perhaps the dependence is even less than the dependence on cigarettes." 45
Second, there is no evidence whatsoever that the use of marijuana has a direct relationship to the commission of crime. One commentator has noted that " during the high the marihuana user may say things he would not ordinarily say, but he generally will not do things that are foreign to his nature. If he is not normally a criminal, he will not commit a crime under the influence of the drug." 46 In fact, it is entirely likely that the characteristic passive reaction to the use of marijuana tends to inhibit criminality. A recent study has shown that juvenile "potheads" tend to be nonaggressive and to stay away from trouble.47 Similarly, there is no scientific evidence for the proposition that marijuana is an aphrodisiac. It has been suggested to the contrary that the most potent form of cannabis, pure ganja, has the reverse effect, being taken by Indian priests to quell the libido.48
Finally, the evidence is at best inconclusive regarding the contention that use of marijuana leads to the use of "hard" narcotics. Some of the early studies claiming to have established a valid connection were scientifically unreliable. One authority has observed in this regard:
Supposedly scientific studies of this problem have been conducted in the past, such as the one done in a deprived area of a large city where the use of heroin was widespread, and indicating that many users of marijuana went on to the use of more hazardous drugs. I am sure that without previous marijuana, the use of such drugs in that environment would be just as high, and that if such a study were done on a college population, it would be found that the subsequent use of "hard" drugs would be negligible.49
Referring to a presidential task force investigation, another authoritv has commented:
It is true that the Federal study showed that among heroin users about 50% had had experience with marijuana- the study also found, however, that most of the heroin addicts had been users of alcohol and tobacco. There is no evidence that marijuana is more likely than alcohol or tobacco to lead to the use of narcotics.50
On the basis of the available information, most authorities have concluded that there is no scientific basis for the theory that the use of marijuana is a causal factor in the use of "hard" narcotics.51 In any event, as a matter of common sense, it would appear that the phenomenon in dispute is very complex, including both individual personality features and environmental factors. As one commentator put it "Several of the studies indicate that the precious statistics have been misleading and exaggerated." Whether or not the proposition can be scientifically established, there is probably a slightly greater chance that an individual who has used marijuana could go on to opiates, but statistically this is not . . . an important social consideration."52
Thus, it appears that none of the traditional allegations about marijuana has been scientifically established, that its alleged addictive qualities have been disproved, and that the overwhelming weight of authority disputes its allegedly crime producing and stepping stone tendencies. We will now briefly survey the medically recognized effects of the drug, physical, psychomotor and psychological.
(b) Physical Effects.-The acute physical effects of marijuana are the subject of much debate. Various studies have reached different conclusions. Nearly all authorities, however, are in agreement that the bodily symptoms accompanying the "high" are very slight. The most commonly noted effects are a slight rise in blood pressure, conjunctival vascular congestion, slight elevation in blood sugar, urinary frequency and an increase in pulse rate.53 In general, these acute symptoms are relatively short-lived, and there are no known lasting physical effects.54 On the other hand, there is evidence that prolonged smoking could lead to "marijuana bronchitis," and that communal smoking has the tendency to encourage the spread of communicable diseases.
(c) Psychomotor Effects.-Varying results have also been reported in studies of the acute effects of marijuana upon psychomotor functions. Although the researchers have sometimes found some slight impairment in performance tests,55 there is apparently no general depressing or stimulating effect on the nervous system and no influence on speech and coordination.56 In the most recent study, Doctors Well, Zinberg and Nelson of the Boston University School of Medicine found that marijuana users are able to compensate nearly 100 percent for whatever adverse effects may result on ordinary psychomotor performance. 57
Such findings suggest that marijuana is not likely to be a causal factor in driving accidents, a hypothesis that is supported by a recent simulated driving test comparing the performance of subjects under the influence of marijuana and alcohol.58 There seems to be no contention in the medical field that there are any lasting effects from marijuana in the psychomotor area. The Well study reported that noticeable effects "were diminished between 30 minutes and I hour, and they were largely dissipated 3 hours after the end of smoking. No delayed or persistent effects beyond 3 hours were observed or reported." 59
(d) Psychological Effects.-The acute psychological effects of the use of marijuana are more complex. At the outset, it can be stated with certainty that "marijuana is definitely distinguishable from other hallucinogenic drugs such as LSD, MIT, mescaline, peyote, and psilocybin. Although it produces some of the same effects, it is far less potent than these other drugs. It does not alter consciousness to nearly so great an extent as they do nor does It lead to increasing tolerance to the drug dosage." 60 Furthermore, the subjective effects of cannabis are dependent upon the personality of the user, his expectations, and the circumstances under which the drug is taken, as well as learning to smoke marijuana properly.61
There is general agreement about the pleasurable psychological effects. Users uniformly experience greatly enhanced perception-whether real or delusory-of visual, auditory, taste and touch effects, increased sense of humor or hilarity, feelings of well-being or wonderment, and distorted time and space perceptions.62 In this connection, it is interesting to note that even the pleasurable phenomena are dependent on individual circumstances, particularly ivlicii the drug is taken for the first time. Many, if not most, people do not become "high" on their first exposure to marijuana, even if it is smoked correctly.63 The probable explanation for this curious phenomenon is that repeated exposure to marijuana reduces psychological inhibition, as part of, or as a result of, a learning process.64
Medical knowledge is most tentative with reference to adverse psychological effects. Recent studies, however, have vehemently disputed an earlier tendency to attribute psychoses and severe panic reactions to marijuana use.65 As Dr. Well has noted:
Because reliable information about the acute effects of marijuana has been as scarce within the medical profession as without, many of these reactions have been misinterpreted and incorrectly treated. For example, simple panic states, which doubtless would be properly diagnosed in other circumstances, are often called "toxic psychoses" when doctors elicit immediate histories of marijuana use.66
Medical experts now generally agree that the possibility of depression, panic and psychoses depends entirely on the circumstances of use and the personality of the user.67 In his most recent study, Dr. Weil concluded that "serious adverse reactions are uncommon in the 'normal' population,"68 but noted three exceptions. First, simple depressive reactions which rarely occur in regular users may occur in novices who approach their initial use ambivalently.69 Second, the most frequent adverse reaction is apprehension, more often described as anxiety, and sometimes reaching a degree of panic. Again, such reactions are closely related to the attitude of the user and to the social setting.70 The social setting also influences the frequency of panic reactions, suggesting again that this phenomenon correlates with the degree of reluctance with which people approach initial use of the drug:
In a community where marijuana has been accepted as a recreational intoxicant, they may be extremely rare (for example, one per cent of all responses to the drug). On the other hand, at a rural Southern college, where experimentation with the drug may represent a much greater degree of social deviance, 25 per cent of persons trying it for the first time may become panicked.71
The panicked person normally believes that he is either dying or losing his mind, and simple reassurance will end most such reactions.72 The reaction normally is short-lived, but it may be prolonged by an attitude encouraging the underlying fears.73 In short, "panic reactions . . . seem more nonpharmacologic than pharmacologic."74
Third, psychotic reactions occur rarely, if at all, in normal users,75 and occur mainly
in persons with a low psychosis threshold or a history of psychosis76 or hallucinogenic
drug experimentation.77 Even in such cases, marijuana is a precipitant rather than a
primary cause of this type of reaction 78 which lasts at most a day or two.79
1 TRAFFIC IN Opium 69 (1960).
2 In reporting the marijuana arrests of Robert Kennedy, Jr., and R. Sargent Shriver, Jr., Walter Cronkite noted that "This case is not unusual; more and more parents across the nation find themselves going to court with their children on drug charges. It's becoming an incident of modern living." CBS Evening News, Aug. 6, 1970, See also J. Rosevear, Pot: A HANDBOOK OF MARIHUANA 117-31 (1967); TRAFFIC IN OPIUM 2, 40 (1966).
11 Perhaps the best statement the authors have yet encountered to this effect was made by Jerry Rubin, one of the Chicago Seven, in Charlottesville, Virginia, on May 6, 1970, when he said: "Smoking pot miles you a criminal and a revolutionary-as soon as you take your first puff. you are an enemy of society" See also J. Rubin. Do It! (1970).
12 Wash. Post, Feb. 24, 1970, at III, col. 3.
13 N.Y. Times, Feb. 15, 1970, § 6 (Magazine), at 14 (statement of Dr. Stanley Yolles).
14 See, e.g., Wash. Post, May 16, 1970, at A3, col. 8 (reporting a Minnesota Supreme Court decision holding that possession of small amount of marijuana does not necessarily justify conviction). This case is discussed at P. 1122 infra.
15 N.Y. Times, Oct. 19, 1969, § 4, at 8, col. 2.
16 Narcotics Legislation Hearings 4 (statement of Senator Dodd).
17 Goode, The Marijuana Market, 12 Colum. F., Winter 1969, at 7.
18 Id. at 8.
19 Hearings Before the Subcomm. to Investigate Juvenile Delinquency of the Senate Comm. on the judiciary, 90th Cong., 2d Sm. 4510 (1968) [hereinafter cited as Juvenile Delinquency Hearings]. At these hearings, former Commissioner of the Bureau of Narcotics, Henry Giordano, stated: "We have not seen any evidence of criminal syndicates such as the Mafia being involved [in the marijuana trade]." Id.
20 Goode, supra note 17, at 4, 5. See also Leary, the Politics, Ethics, and Meaning of Marijuana, in The MARIHUANA PAPERS 121 (D. Solomon ed. 1966).
21 See Los Angeles Times Dec. 4, 1967, s. 2 at 6, col. 1 (statement by Los Angeles Police Chief).
22 See Mandel, Problems with Official Drug Statistics, 21 Stan. L. Rev. 991, 1021 n. 114 (1969).
23 See TRAFFIC IN OPIUM 72 (1960); id. at 65 (1961) id at 78 (1963)
25 The state of California has kept excellent statistics since 1959. In 1968. as a typical year of the late sixties, the police seized over 30,000,000 grams of marijuana of all kinds in only 10,000 arrests. The larger amount seized relative to the number of arrests seems to indicate the concentration on dealers. BUREAU OF CRIMINAL STATISTICS, DEPT OF JUSTICE, STATE OF CALIFORNIA, DRUG ARRESTS AND DISPOSITIONS IN CALIFORNIA 41, 43 (1968)
26 Id. at 37-39.
27 See Fort, Social Problems of Drug Use and Drug Policies, 56 CALIF. L. Rev. 17, 23 (1968). See also H. BECKER, OUTSIDERS 159 (1963); T. DUSTER, T14E LEGISLATION OF MORALITY: LAW, DRUGS AND MORAL JUDGMENT (1970).
28 See LITTLE, DRUG ABUSE AND LAW ENFORCEMENT 1313 -15 (1967); Project, Marijuana Laws: An Empirical Study of Enforcement and Administration in Los Angeles County, 15 U.C.L.A. L. Rev. 1507, 1522-31 (1968).
29 TIME, Sept. 26, 1969, at 70.
30 One commentator has charged that those most knowledgeable about marijuana have "dodged" the topic. Kaplan, The Special Case of Marihuana (Or, It's the Doctor's Fault), 9 J. CLINICAL PHARMACOLOGY 349, 351 (1969).
31 At the end of 1968 there existed only four known studies on human subjects conducted by Americans. See Weil, Zinberg & Nelson, Clinical and Psychological Effects of Marihuana in Man, 162 SCIENCE 1234, 1235 (1968) [hereinafater cited as Weil Study]. The previous lack of concern with marijuana call also be observed by 211 examination of the number of articles appearing in medical periodicals. During the decade between 1942 and 1951, only six articles dealing with the subject are listed in the index for medical journals. Eleven reports were noted as being published in the next ten years. From 1962 to 1966, an average of three materials per year were available. It was not until 1967 that the subject became of sufficient interest to occupy the time of a reasonable number of medical authors. In that year, eleven articles appeared in medical periodicals. By 1968, this number had increased to 30, and in 1969 more than 60 articles dealing with the topic of human marijuana consumption have appeared. In other words, more than three times the number of articles appeared in the last three years than in the 25 preceding years.
32 In Fiscal year 1967, NIMH obligated $786,000 for marihuana research grants and contracts. Comparable figures for 1968 and 1969 respectively were S1,239,000 and $1,330,000. In Fiscal year 1970, if funds are available, the institute proposes to obligate $2,550,000 to support grant and contract studies of marihuana, which means that there will have been a more than three-fold increase for support of these studies in the last four years." Statement by Dr. Roger 0. Egcberg, Assistant Secretary for Health and Scientific Affairs, M.S. Dep't of HEW, before the Select Committee oil Crime, U.S. House of Representatives (mimeographed press release).
33 Weil Study 1234.
34 The three substances are charas-pure unadulterated resin that has been scraped from the leaves and flowering tops of the female plant; hashish or ganja-an agglomeration of female flowering tops and stems with whatever resin is attached to their surfaces, thought to contain about 40% resin; and marijuana-a low potency preparation consisting of dried mature leaves and flowering tops of both male and female plants, thought to contain between 5 and 8% resin. Schwarz, Toward a Medical Understanding of Marihuana, 14 CAN. PSYCHIATRIC ASS'N J. 591, 592 (1969).
35 As long as the term marihuana is used indiscriminately to refer to cannabis of all kinds and potencies, confusion will continue. . . . In this country some of the vigorous opponents of marihuana seem to foster this confusion by attributing to any use of marihuana the effects produced primarily by the excessive use of the more potent forms of cannabis in an attempt to preserve a strongly negative public image of marihuana.
H. NOWLIS, DRUGS ON THE COLLEGE CAMPUS 93 (1969).
36 "The major botanical feature of the plant is the extreme variability in its appearance, characteristics and properties when grown in different geographical and climatic condition." Schwarz, supra note 34, at 591. In the United States and Mexico, for example, the production of the more potent forms is relatively uncommon, and there appears to be no demand for them. J. ROSEVEAR, POT: A HANDBOOK OF MARIHUANA 31-33 (1967).
37 Schwarz, supra note 34, at 592.
38 Zunin, Marijuana: The Drug and the Problem, 134 MILITARY MED. 104, M. 7 (1969). According to the author, several factors contribute to this phenomenal: (1) The amount of resin found in the flowering tops markedly decreases as the plants are grown in more temperate areas. It is estimated that the resin content of Indian cannabis is 20%; Mexican 15% or less; that grown in Kentucky 8%; and that found in Wisconsin 6% or less.
(2) The activity of the resin in the female is greatly reduced if fertilized by the male. In this country, because of an inability to distinguish between the two plants, inattention to cultivation and lack of knowledge, the female plants are fertilized. (3) The resinous content is highest prior to "going to seed" of the female plant. The marijuana in this country has gone to seed prior to harvesting.
(4) The male plant contains little or no resin content. In this country, the male plant is indiscriminately mixed with the female plant in the final preparation.
(5) The most active portion of the plant is the flowering top. In this country, preparations of marijuana are composed primarily of leaves, twigs, and seeds which are crushed.
(6) The potency of marijuana decreases with time. It is reduced at the end of one year, markedly reduced at the end of two years, and nonexistent at the end of three years. In addition, it keeps better in cold, dry climates. Most of the marijuana in the United States is several months to several years old by the time it has been harvested and has passed through the smuggling operation.
39 Given the above variations in the plant and in its products and extracts, together with the continuing ignorance of its chemistry it is not surprising that it is virtually impossible to make direct comparisons between the various studies on the effects on human beings who are even more individually variable.
Schwarz, supra note 34, at 593.
Recently. what is believed to be the active ingredient in marijuana has been isolated and synthesized. However, this substance denominated (THC), is only available for research in very limited quantities. Weil Study Furthermore, it has not been proven that THC is the sole ingredient contributing to the effects caused by marijuana.
40 "[M]any pharmacologists dismiss the possibility of giving marihuana by smoking because, they sav, the dose cannot he standardized." Weil Study 1235.
41 Id.
42 Id.
43 "-There is now an abundance of evidence that marihuana is not an addictive drug. Cessation of its use produces no withdrawal symptoms, nor does a user feel any need to increase the dosage as he becomes accustomed to the drug." Grinspoon, Marihuana 221 Sci. Am. 17, 21 (1969).
44 Id.
45 Zunin, supra note 38, at 108.
46 Grinspoon, supra note 43, at 22.
47 McGlothlin & West, The Marihuana Problem: An Overview, 125 Am. J. PSYSH. 370, 372-73 (1968). This supports the finding of the La Guardia Report that marijuana is not a direct causal factor in criminal misconduct, but that the "high" leads to sociable attitudes.
48 THE MARIHUANA PAPERS 44 (D. Solomon ed. 1966). Since marijuana has a tendency to produce drowsiness, it is difficult to see how it could lead to an act of violent sex. J. ROSEVEAR, supra note 36, at 61. See also La Guardia Report, in THE MARIHUANA PAPERS 296-97 (D. Solomon ed. 1966).
49 Radoosky, Marijuana Foolishness, 280 NEW ENG. J. MED. 712 (1969).
50 Grinspoon, supra note 43, at 21-23.
51 THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: NARCOTICS AND DRUG ABUSE 13-14 (1967); Council on Mental Health and Committee on Alcoholism and Drug Dependence, Dependence on Cannabis (Marijuana), 201 JAM.A. 368-71 (1967).
52 Zunin, supra note 38, at 108.
53 L. GOODMAN & A. GILMAN, THE PHARMACOLOGICAL BASIS OF THERAPEUTICS ch. 16 (3d ed. 1965). Nausea, vomiting and diarrhea have also been reported, but it is felt that these symptoms are mainly the result of oral administration. Grinspoon, supra note 43, at 20. Increased appetite and dryness of the mouth are also said to be common.
54 Usually the reports of chronic ill effects are to be found in Eastern studies of individuals using the stronger hashish or pure resinous substances over prolonged periods of time and are complicated by the immeasurable effects of many other social, economic, personality and cultural factors. Schwarz, supra note 34, at 595.
55 Tests by Robert S. Morrow in the 1930's revealed that even large doses of marijuana did not affect performances on tests of the speed of tapping or the quickness of response to simple stimuli. Grinspoon, supra note 43, at 20. "The drug did affect steadiness of the hand and body and the reaction time for complex stimuli." Id. The most recent study in this area was done by Andrew Weil, Norman Zinberg and Judith Nelson of the Boston University School of Medicine. Their conclusions were that regular users of marijuana may show some slight degree of impairment in performance tests, but that the aptitude of the subjects may even improve slightly after smoking marijuana. Weil Study 1242. Marijuana-naive subjects tended to show some impairment in performance. Id.
56 N.Y. Times, May 11, 1969, §6 (Magazine), ' at 92, Col. 2.
57 We were struck by the difficulty of recognizing when a subject is high unless he tells you that he is . . . . It seems possible to ignore the effects of marihuana on consciousness, to adapt to them, and to control them to a significant degree. Id.
58 Comparison of tbe Effects Of Marijuana and, Alcohol On Simulated Driving Performance 164 SCIENCE 851 (1969) (concluding that subjects under a "social marijuana high" showed no significant differences from control subjects in accelerator, brake, signal, steering, and total errors). In addition, "unlike alcohol drinkers, most pot smokers studiously avoid driving while high." J. ROSEVEAR, supra note 36, at 135.
59 Weil Study 1238.
60 Grinspoon, supra note 43, at 19.
61 H. NOWLIS, DRUGS ON THE COLLEGE CAMPUS 96-101 (1969).
62 L. GOODMAN & A. GILMAN, supra note 53, at ch. 16; Dependence on Cannabis (Marijuana), supra note 51, at 368-71.
63 Weil Study 1241; Wash. Post, May 24, 1970, at A26, col. 1.
64 "The subjective responses of our subjects indicate that they had imagined a marihuana effect to be much more profoundly disorganizing than what they, experienced." Weil Study 1241. This subjective control over the effects extended as far as the reporting of no effects when in actuality the subject had received a large dose. Id. 65 Grinspoon, supra note 43, at 23-24.
66 Weil, Adverse Reactions to Marijuana, 282 NEW ENG. J. MED. 997 (1970).
67 See, e.g., Schwarz, supra note 34, at 595; Weil, supra note 66.
68 Weil, supra note 66, at 997.
69 Marihuana depressions I have seen have occurred mainly in obsessive-compulsive persons who are ambivalent about trying the drug or who invested the decision to experience marihuana with great emotional meaning. In interviewing these patients, I have thought that they used marihuana as an excuse for letting themselves be depressed, not that their depressions were psycho-pharmacological.
Id. at 998.
70 Dr. Weil has stated that "panic reactions occurred most often among novice
users of marijuana-frequently older persons who are ambivalent about trying the drug in
the first place." N.Y. Times, May 1, 1970, at 18C, col. 2.
71 Id. These panic reactions may emulate acute psychoses in hospital emergency wards "where the patient may feel overwhelmed, helpless and unable to communicate his distress." Weil, supra note 66, at 998.
72 Id.
73 N.Y. Times, May 1, 1970, at 18C, col. 3.
74 Weil, supra note 66, at 1000.
75 Dr. Weil is of the opinion that "all adverse reactions to marihuana should be considered panic reactions until proven otherwise," id. at 998, and that he has never seen a toxic psychosis following the smoking of marijuana by a normal user. Id. at 9199.
716 Id. at 1000.
7-7 Id. at 999-1000.
78 H. Nowlis, DRUGS ON THE COLLEGE CAMPUS 96-101 (1969); Schwarz, supra note 34 at 595.
79 McGlothlin & West, The Marijuana Problem: An Overview, 125 Am. J. Psych. 370,372
(1968).
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