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United States District Court,
District of Columbia.

Feb. 11, 1980.

Footnotes

^1.  NORML requested a three-judge district court pursuant to 28 U.S.C. §§ 2281, 2282 (1970) (repealed 1976).  This court granted the application March 12, 1974.  Congress has since repealed this provision providing three-judge district courts to hear constitutional challenges to federal and state statutes.  Act of Aug. 12, 1976, Pub.L. No. 94-381, §§ 1-2, 90 Stat. 1119.

^2.  Subject matter jurisdiction for the federal action exists under 28 U.S.C. §§ 1331(a) (1976) (general federal question jurisdiction), 1337 (1976) (jurisdiction for acts regulating commerce).  This court concluded that it lacked subject matter jurisdiction over the District of Columbia defendants for want of the requisite amount in controversy and therefore dismissed that part of the complaint. NORML v. Cullinane, No. 1897-73 (D.D.C. May 5, 1976) (order dismissing suit as to D.C. defendants).

^3.  On May 18, 1972, NORML filed an application with the Attorney General to remove marijuana from control under the CSA or, in the alternative, to reclassify the drug in a different schedule.  This endeavor continues today.  The Drug Enforcement Administration (DEA) twice rejected these efforts at reclassification, citing American treaty obligations under the Single Convention on Narcotic Drugs, opened for signature Mar. 30, 1961, 18 U.S.T. 1407, 30 T.I.A.S. No. 6298, 520 U.N.T.S. 151 (Single Convention).   The United States Court of Appeals for the District of Columbia Circuit reversed these determinations. NORML v. DEA, 182 U.S.App.D.C. 114, 559 F.2d 735 (D.C.Cir. 1977); NORML v. Ingersoll, 162 U.S.App.D.C. 67, 497 F.2d 654 (D.C.Cir. 1974).   In the DEA case, the court directed the DEA to "refer the NORML petition to the Secretary of HEW for medical and scientific findings and recommendations for rescheduling, consistent with the requirements of the Single Convention." NORML v. DEA, 182 U.S.App.D.C. at 114, 559 F.2d at 735.  On remand the DEA again declined to reclassify marijuana.  43 Fed.Reg. 36123 (1979).  The Administrator of the DEA followed the recommendation of the Secretary of HEW that marijuana remain in Schedule I.  Id. at 36127.  NORML is appealing this ruling to the District of Columbia Circuit. NORML v. DEA, No. 79-1660 (D.C.Cir., filed June 27, 1979).

^4.  Title I of DAPCA deals with the rehabilitation of drug abusers and authorizes federal funds for treatment centers and drug abuse programs.  Title II establishes controls and registration requirements for drugs, see text and notes at pp. 127-128 infra, while Title III regulates the import and export of controlled substances.  H.R.Rep. No. 1444, 91st Cong., 2d Sess. 3-5 (1970) [hereinafter cited as 1970 House Report], reprinted in [1970] U.S.Code Cong. & Admin.News, pp. 4566, 4568-71.

^5.  Previous federal laws dealing with drug abuse included the Harrison Act, ch. 1, 38 Stat. 785 (1914) (repealed 1970), and the Marihuana Tax Act, ch. 553, 50 Stat. 551 (1937) (repealed 1970).  For a discussion of federal efforts against drug abuse before passage of DAPCA, see Bonnie and Whitebread, The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition, 56 Va.L.Rev. 976 (1970).

^6.   The criteria for the different schedules are:

(1)  Schedule I. -
    (A)  The drug or other substance has a high potential for abuse.
    (B)  The drug or other substance has no currently accepted medical use in treatment in the United States.
    (C)  There is a lack of accepted safety for use of the drug or other substance under medical supervision.

(2)  Schedule II. -
    (A)  The drug or other substance has a high potential for abuse.
    (B)  The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.
    (C)  Abuse of the drug or other substances may lead to severe psychological or physical dependence.

(3)  Schedule III. -
    (A)  The drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II.
    (B)  The drug or other substance has a currently accepted medical use in treatment in the United States.
    (C)  Abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence.

(4)  Schedule IV. -
    (A)  The drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule III.
    (B)  The drug or other substance has a currently accepted medical use in treatment in the United States.
    (C)  Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule III.

(5)  Schedule V. -
    (A)  The drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule IV.
    (B)  The drug or other substance has a currently accepted medical use in treatment in the United States.
    (C)  Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule IV.

21 U.S.C. § 812(b).

^7.  See 1970 House Report, supra note 4, at 34, reprinted in [1970] U.S.Code Cong. & Admin.News at 4601; note 40 infra.

^8.   See note 41 infra for text of section 811(c).

^9.  The problem of drug abuse received considerable attention from Congress before passage of DAPCA in 1970.  See, e. g., Drug Abuse Control Amendments: Hearings on H.R. 11701 and H.R. 13743 Before the Subcomm. on Public Health and Welfare of the House Comm. on Interstate and Foreign Commerce, 91st Cong., 2d Sess. (1970) (pts. 1 & 2).

^10.  When hearing petitions for reclassification or for the classification of new drugs, the Act directs the Attorney General to seek the advice of the Secretary of Health, Education, and Welfare regarding the medical and scientific properties of the drug, with such findings having a binding effect on the Attorney General, 21 U.S.C. §811(b).  But cf. 21 U.S.C. § 811(d) (Attorney General unilaterally may determine appropriate schedule for drug if treaty obligations are involved).  This provision has been the subject of litigation involving NORML's application to reclassify marijuana. See NORML v. DEA, 182 U.S.App.D.C. 114, 559 F.2d 735 (D.C.Cir. 1977); note 3 infra.

^11.  Under the CSA, "narcotic drug" is defined to include any vegetable or chemical form of:

(A)  Opium, coca leaves, and opiates.
(B)  A compound, manufacture, salt, derivative, or preparation of opium, coca leaves, or opiates.
(C)  A substance (and any compound, manufacture, salt, derivative, or preparation thereof) which is chemically identical with any of the substances referred to in clause (A) or (B).

21 U.S.C. § 802(16).
        Under this definition, marijuana is not a narcotic.  Cf. D.C.Code 33-401(m) (1973) (including cannabis within the legal definition of narcotic).

^12.  The House Report states that "section 408 is the only provision of the bill providing minimum mandatory sentences, and is intended to serve as a strong deterrent to those who otherwise might wish to engage in the illicit traffic, while also providing a means for keeping those found guilty of violations out of circulation."   1970 House Report, supra note 4, at 10, reprinted in [1970] U.S.Code Cong. & Admin.News at p. 4576.

^13.   Impaired motor responses from marijuana use have been studied to determine the drug's effect on driving ability.  The evidence now indicates that even social doses of the drug can impair seriously a driver's ability to handle an automobile.   Marihuana and Health: Sixth Annual Report to the U.S. Congress From the Secretary of Health, Education, and Welfare 23 (1976) [hereinafter cited as 1976 HEW Report].   A related problem involving marijuana is that, unlike alcohol, there is no easy method of determining whether one has recently used marijuana.  Marihuana and Health: Fifth Annual Report to the U.S. Congress From the Secretary of Health, Education, and Welfare 3 (1975) [hereinafter cited as 1975 HEW Report].  Transcript, June 14, 1978, at 409-10 (testimony of Dr. Reese Jones).

^14.  Studies also indicate that users are able to "self-titrate," using only the amount needed to produce the desired intoxicated effect.  See Tr., June 12, 1978, at 33 (testimony of Dr. Lester Grinspoon); Tr., June 13, 1978, at 259 (testimony of Dr. Thomas Underleider).

^15.  Marijuana is not physically addictive, but some studies have found that long-term users develop a psychological addiction.  1975 HEW Report, supra note 13, at 91.

^16.  Clinical studies have failed to discover a relationship between use of marijuana and use of more addictive drugs such as heroin.  These laboratory studies may fail to take account of the social and psychological pressures confronting marijuana users "on the street."  Testifying before Congress, Doctor Robert W. Baird, director of the Haven Clinic, a narcotics rehabilitation center in Harlem, stated that use of marijuana provided youngsters a pleasurable introduction to the "drug culture"; after initial experimentation with marijuana, young marijuana users were more willing to try stronger, more dangerous, substances.  Decriminalization of Marihuana: Hearings Before the House Select Committee on Narcotics Abuse and Control, 95th Cong., 1st Sess. 423-38 (1977) (testimony of Dr. Robert W. Baird).

^17.  Concern over the effects of the drug on pubertal males is growing as the age of the marijuana users drops.  Studies now show that marijuana use is commonplace among adolesents.  In a 1977 survey, 30% of all 12-17 year olds and 60% of all 18-25 year olds indicated that they had used marijuana.  Marihuana and Health: Seventh Annual Report to the U.S. Congress From the Secretary of Health, Education, and Welfare 5-9 (1977).

^18.  Plaintiff argues that a related right of personal autonomy is also fundamental under the Constitution.  It cites to support this proposition Justice Brandeis's famous dissent in Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928):

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness.  They recognized the significance of man's spiritual nature, of his feelings and of his intellect.  They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things.   They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.  They conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized [man].

This right of personal autonomy and the general right of privacy are closely related, and they will be discussed under the broader framework of the right of privacy.

^19.   Justice Douglas wrote:

[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.  Various guarantees create zones of privacy.  The right of association contained in the penumbra of the First Amendment is one . . . .  The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."   The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment.   The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Griswold v. Connecticut, 381 U.S. at 484, 85 S.Ct. at 1681.

^20.  "[T]he right of personal privacy includes the abortion decision, but . . . this right is not unqualified and must be considered against important state interests in regulation." Roe v. Wade, 410 U.S. at 154, 93 S.Ct. at 727.   These interests justify prohibitions on abortions once the fetus is viable, id. at 163-64, 93 S.Ct. at 731-32.

^21.  These rights are derived from the first amendment, Stanley v. Georgia, discussed at pp. 131-132 supra; the fourth and fifth amendments, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); the ninth amendment, Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (Goldberg, J., concurring); the "penumbras" of the Bill of Rights, Griswold v. Connecticut, discussed at pp. 130-131 supra; or those rights "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. at 324, 58 S.Ct. at 151.  See Roe v. Wade, 410 U.S. at 152, 93 S.Ct. at 726.

^22.  The Supreme Court in Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), noted the relationship between the fundamental familial rights and the right of privacy:

The Meyer-Pierce-Yoder [Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972)] "parental" right and the privacy right . . . may be no more than verbal variations of a single constitutional right.  See Roe v. Wade, 410 U.S. 113, 152-153, 93 S.Ct. 705, 726-727, 35 L.Ed.2d 147 (citing Meyer v. Nebraska and Pierce v. Society of Sisters for the proposition that this Court has recognized a constitutional right of privacy).

Id. at 178 n.15, 96 S.Ct. at 2598 n.15.

^23.  NORML relies heavily on Ravin v. State, 537 P.2d 494 (Alaska 1975) to support its contention that smoking marijuana is a fundamental right.  The Alaska Supreme Court, finding a special right of privacy in the home, struck down the state marijuana statute, Alaska Stat. § 17.12.010 (1975), as it applied to private use of marijuana in the home.  The Alaska court upheld the prohibition or marijuana use while operating a motor vehicle, but it could find "no adequate justification for the state's intrusion into the citizen's right to privacy [in] its prohibition of possession of marijuana by an adult for personal consumption in the home."  537 P.2d at 511.  The Alaska court based its ruling on a new provision of the state constitution that explicitly guarantees a right of privacy.  Alaska Const. art. 1, § 22.  See 537 P.2d at 504.  Without that constitutional provision, no such right would exist:

        Assuming this court were to continue to utilize the fundamental right-compelling state interest test in resolving privacy issues under article 1, section 22 of Alaska's constitution, we would conclude that there is not a fundamental constitutional right to possess or ingest marijuana in Alaska.  For in our view, the right to privacy amendment to the Alaska Constitution cannot be read so as to make the possession or ingestion of marijuana itself a fundamental right.

Id. at 502.  This admission in Ravin that private use of marijuana is not a fundamental right and the special reliance on the Alaska Constitution do not support NORML's position.

^24.  The Shafer Commission noted: "in short, persons who initiate use of marihuana generally do so out of curiosity and the desire for fun, excitement or 'kicks.' . . .  Those who continue to use the drug . . . do so for the most part because they have enjoyed the experience."  National Comm'n on Marihuana and Drug Abuse, Marihuana: A Signal of Misunderstanding app. vol. 1, at 265 (1972) (technical papers).

^25.   The Supreme Court has refused to find any right of private possession of other intoxicants such as alcohol.  Crane v. Campbell, 245 U.S. 304, 38 S.Ct. 98, 62 L.Ed. 304 (1917).

^26.  In other cases, the Court has refused to find a right of privacy in the absence of some fundamental interest. See Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (no right of privacy in one's reputation); Doe v. Commonwealth's Attorney, 403 F.Supp. 1199 (E.D.Va.1975), aff'd mem., 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976) (upholding statute forbidding consensual homosexual relations in private).

^27.  NORML argues that the Court's reference to "narcotics" does not include marijuana, a nonnarcotic drug.  Brief for Plaintiff at 10.  The distinction is unpersuasive.  The footnote merely restates the proposition that a constitutional right must be involved for there to be a right of privacy in the home.

^28.  Cases rejecting plaintiffs argument that private possession of marijuana is a fundamental or constitutional right include: United States v. Drotar, 416 F.2d 914 (5th Cir. 1969), vacated on other grounds, 402 U.S. 939, 91 S.Ct. 1628, 29 L.Ed.2d 107 (1971); Louisiana Aff. of NORML v. Guste, 380 F.Supp. 404 (E.D.La.1974), aff'd, 511 F.2d 1400 (5th Cir.), cert. denied, 423 U.S. 867, 96 S.Ct. 129, 46 L.Ed.2d 96 (1975); United States v, Maiden, 355 F.Supp. 743 (D.Conn. 1973); State v. Murphy, 117 Ariz. 57, 570 P.2d 1070 (1977); In re Klor, 64 Cal.2d 816, 51 Cal.Rptr. 903, 415 P.2d 791 (1966); People v. Aguiar, 257 Cal.App.2d 597, 65 Cal.Rptr. 171, cert. denied, 393 U.S. 970, 89 S.Ct. 411, 21 L.Ed.2d 383 (1968); State v. Anonymous, 32 Conn.Sup. 324, 355 A.2d 729 (1976); Laird v. State, 342 So.2d 962 (Fla.1977); Borras v. State, 229 So.2d 244 (Fla.1969), cert. denied, 400 U.S. 808, 91 S.Ct. 70, 27 L.Ed.2d 37 (1970); Blincoe v. State, 231 Ga. 886, 204 S.E.2d 597 (1974); State v. Renfro, 56 Haw. 501, 542 P.2d 366 (1975); State v. Baker, 56 Haw. 271, 535 P.2d 1394 (1975); Marcoux v. Attorney Gen., Mass., 375 N.E.2d 688 (1978); Commonwealth v. Leis, 355 Mass. 189, 243 N.E.2d 898 (1969); State v. Kells, 199 Neb. 374, 259 N.W.2d 19 (1977); State v. Anderson, 16 Wash.App. 553, 558 P.2d 307 (1976).

^29.  The due process clause of the fifth amendment requires that federal legislation satisfy the same standards of equal protection of the law that are guaranteed by the fourteenth amendment. See Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976) ("Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment."); Boiling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

^30. See the discussion of fundamental rights at pp. 130-133 of text supra.

^31.  Doctor Stanley Yolles, testifying before the House Committee on Interstate and Foreign Affairs, submitted a chart contrasting popularly believed myths with the scientific evidence on marijuana.  The chart reflected the state of knowledge about the drug that prevailed when he spoke in 1970.

1970 House Report, supra note 4, at 12-13, reprinted in [1970] U.S.Code Cong. & Admin.News at 4577-78.

^32.  This recommendation came in a letter stating:

Some question has been raised whether the use of the plant itself produces "severe psychological or physical dependence" as required by a schedule I or even a schedule II criterion.  Since there is still a considerable void in our knowledge of the plant and effects of the active drug contained in it, our recommendation is that marijuana be retained within schedule I at least until the completion of certain studies now underway to resolve this issue.  If those studies make it appropriate for the Attorney General to change the placement of marijuana to a different schedule, he may do so in accordance with the authority provided . . . .

Letter from Dr. Roger O. Egeberg, Assistant Sec'y for Health and Scientific Affairs, Dep't of HEW, to Hon. Harley O. Staggers, Chairman, House Comm. on Interstate and Foreign Commerce, reprinted in 1970 House Report, supra note 4, at 61; [1970] U.S.Code Cong. & Admin.News at 4629-30.
        In an effort to secure more information about marijuana, Congress, in section 601 of DAPCA, established the Commission on Marihuana and Drug Abuse to study marijuana use and its effects.  The Commission, headed by Governor Raymond P. Shafer, issued its report, Marihuana: A Signal of Misunderstanding, in 1972.  The Commission recommended that federal and state penalties for private possession of marijuana be eliminated and that governmental efforts should focus on discouraging marijuana use.  Signal of Misunderstanding 134-38, 151-60.

^33.  See, e.g., Talbott & Teague, Marihuana Psychosis - Acute Toxic Psychosis Associated With the Use of Cannabis Derivatives, 210 A.M.A.J. 299-302 (1969), reprinted in 116 Cong.Rec. 1650-52 (1970).  According to Senator Dodd, who introduced this report into the Congressional Record during the debate over marijuana, the report documented cases of "marijuana psychosis" and demonstrated that "terrible consequences" could result from use of marijuana.  116 Cong.Rec. at 1653.

^34.  See discussion of marijuana's effects at pp. 128-130 supra.

^35.  Several federal courts have considered and rejected equal protection attacks on the CSA.  See United States v. Kiffer, 477 F.2d 349 (2d Cir.), cert. denied, 414 U.S. 831, 94 S.Ct. 62, 38 L.Ed.2d 65 (1973); United States v. Rodriguez-Camacho, 468 F.2d 1220 (9th Cir. 1972), cert. denied, 410 U.S. 985, 93 S.Ct. 1512, 36 L.Ed.2d 182 (1973); Louisiana Aff. of NORML v. Guste, 380 F.Supp. 404 (E.D.La. 1974), aff'd mem., 511 F.2d 1400 (5th Cir.), cert. denied, 423 U.S. 867, 96 S.Ct. 129, 46 L.Ed.2d 96 (1975); United States v. LaFroscia, 354 F.Supp. 1338 (S.D.N.Y.), aff'd, 485 F.2d 457 (2d Cir. 1973); United States v. Maiden, 355 F.Supp. 743 (D.Conn. 1973).  State courts generally have upheld state marijuana laws against equal protection challenges.  See State v. Murphy, 117 Ariz. 57, 570 P.2d 1070 (1977); People v. McKenzie, 169 Colo. 521, 458 P.2d 232 (1969); United States v. Thorne, 325 A.2d 764 (D.C.App.1974); Raines v. State, 225 So.2d 330 (Fla. 1969); Blincoe v. State, 231 Ga. 886, 204 S.E.2d 597 (1974); State v. Renfro, 56 Haw. 501, 542 P.2d 366 (1975); State v. Baker, 56 Haw. 271, 535 P.2d 1394 (1975); Marcoux v. Attorney Gen., Mass., 375 N.E.2d 688 (1978); Commonwealth v. Leis, 355 Mass. 189, 243 N.E.2d 898 (1969); State v. Kells, 199 Neb. 374, 259 N.W.2d 19 (1977).

^36.   In discussing the regulation of alcohol and tobacco, one district court observed: "The legislative judgment concerning alcohol and nicotine may well have taken into account the degree to which their dangers are known, the adverse consequences of prohibition, and the economic significance of their production.  Whether such factors should lead to similar judgments concerning marijuana is within legislative discretion."  United States v. Maiden, 355 F.Supp. 743, 747-48 (D.Conn.1973).

^37.  The penalties imposed for marijuana are compared to those Schedule I drugs recognized to be the most dangerous of the substances regulated by the CSA, i.e., heroin and the other opiates, rather than those drugs in other schedules that arguably are closer to marijuana in terms of harmful effects.  By so doing, and by concluding that NORML's equal protection challenge, viewed in this light, must fail, the plaintiffs argument regarding penalties is rejected even in its most persuasive form.  A fortiori, the penalties for marijuana do not violate the equal protection guarantee when compared to the less harmful drugs that are controlled substances under the CSA.

^38.  Senator Hughes introduced an amendment to the Senate bill (S. 3246) to lower the penalty for possession of marijuana to six months from one year.  He argued that this lower penalty reflected more closely the actual dangers of marijuana:

        For some, marihuana can be a dangerous drug.  Generally, however, it is a mild drug, when compared with other hallucinogens such as LSD, or with certain amphetamines and barbiturates.  To equate its risk - either to the individual or society - with the risks of hard drugs or with more dangerous drugs simply has no basis. . . .  We must be consistent across the board.  And so we must treat marihuana honestly, in proportion to its dangers as we see them.

116 Cong.Rec. 1648 (1970) (statement of Sen. Hughes).   Senator Dodd, the sponsor of S. 3246, disagreed.  He believed the problems raised by marijuana use were very real:

[W]e cannot take the chance of treating this problem as something that is not really very serious.  It is very serious, and it does very serious and harmful things to other people.
        I think that with the provision of this bill reducing the possession of marihuana down to a misdemeanor and taking away the mandatory requirement of the imposition, the penalty, that we are going as far as we should go.

Id. at 1653 (statement of Sen. Dodd).   Senator Dodd's view prevailed, and the amendment was rejected.

^39. See United States v. Maiden, 355 F.Supp. 743 (D.Conn.1973).

^40.  According to the House Report, "[a] key criterion for controlling a substance, and the one which will be used most often, is the substance's potential for abuse."  1970 House Report, supra note 4, at 34, reprinted in [1970] U.S.Code Cong. & Admin.News at p. 4601.  Senator Hughes, on the other hand, believed the existence of an accepted medical use was the primary factor in a drug's classification.  Discussing the penalties for possession of marijuana and heroin, he noted:

Classification in the bill depends primarily upon whether there is an accepted medical use for the drug.  Because heroin and marijuana have no recognized medical use, they are classified in the same category. . . .  If there is no valid use for a drug, there is a sound reason to impose the strictest record-keeping controls.  But criminal sanctions for illegal distribution and use should be based upon the danger to society and the individual, not upon whether there is any valid medical use.

116 Cong.Rec. 36882 (1970).  Other members of Congress indicated the two criteria were equally important.  "The categorizations are based on [the] 'drug's potential for abuse and nonmedical use.' "   116 Cong.Rec.33658 (1970) (statement of Rep. Cohelan).

^41.   This section states:

        In making any finding under subsection (a) of this section or under subsection (b) of section 202 [21 U.S.C. § 812(b)], the Attorney General shall consider the following factors with respect to each drug or other substance proposed to be controlled or removed from the schedules:
(1)  Its actual or relative potential for abuse.
(2)  Scientific evidence of its pharmacological effect, if known.
(3)  The state of current scientific knowledge regarding the drug or other substance.
(4)  Its history and current pattern of abuse.
(5)  The scope, duration, and significance of abuse.
(6)  What, if any, risk there is to the public health.
(7)  Its psychic or physiological dependence liability.
(8)  Whether the substance is an immediate precursor of a substance already controlled under this title.

21 U.S.C. § 811(c) (1976).

^42.  For a history of NORML's attempts to reclassify marijuana through administrative proceedings, see note 3 supra.

^43.  Indeed, this three-judge district court lacks jurisdiction to hear a challenge to an administrative reclassification proceeding.  Judicial review of the Attorney General's failure to reclassify a controlled substance pursuant to 21 U.S.C. § 811(a) is limited to the United States Court of Appeals for the District of Columbia or for the circuit in which petitioner's place of business is located.  21 U.S.C. § 877 (1976).  Plaintiff has pursued this statutory scheme, and its challenge to the Attorney General's failure to reclassify marijuana is currently pending in the District of Columbia Circuit.  See NORML v. DEA, No. 79-1660 (D.C.Cir., filed June 27, 1979).

^44.  NORML also suggests that the marijuana provisions of the CSA are racially discriminatory because they are most often applied against blacks.  This claim is meritless.  Congress passed the CSA to promote the public health and welfare, and there is no discriminatory intent. See Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).

^45.  NORML relies on Justice Stewart's dictum in Robinson v. California that "[e]ven one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold."  370 U.S. at 667, 82 S.Ct. at 1421. Robinson involved a ninety day sentence for a crime penalizing the "status" of being a narcotics addict.  Possession of marijuana is not a "status" crime, and Robinson is therefore inapposite.

^46.  See, e. g., 18 U.S.C. § 1156 (1976) (maximum penalty of one year imprisonment and $500 fine for unlawful possession of intoxicants on Indian land).

^47.  Some states now have fines for possession of marijuana, while others have penalties for a first offense ranging from six months to six years.  These higher penalties are associated with possession of large amounts of the drug. See National Governors' Conference, Center for Policy Research and Analysis, Marijuana: A Study of State Policies & Penalties, Table IV-4 at 99-104 (1977) (listing state penalties for sale and possession of marijuana).

^48.  In testifying before Congress, Doctor Lester Grinspoon argued that the remaining questions about marijuana should not stop policymakers from reaching decisions about the drug:

        Rigorously impartial scientific investigation is important to counteract the prejudice and irrationality that have characterized much of the debate about marihuana, but this impartiality should not be allowed to degenerate into a false objectivity that declares it unscientific to make policy recommendations.  We must take the scientific conclusions where they lead us as citizens, and stop the increasingly unjustifiable prosecution of marihuana users.

Select Comm. on Narcotics Abuse and Control, 95th Cong., 1st Sess., Considerations For and Against the Reduction of Federal Penalties For Possession of Small Amounts of Marihuana For Personal Use 7 (Comm. Print 1977).  Dr. Grinspoon, of course, is correct.  Responsibility for these decisions, however, rests with Congress, and it has made its choice in enacting the CSA.

^49. See, e. g., Alaska Stat. § 17.12.110 (1975) (civil offense); Cal. Health & Safety Code §§ 11357, 11361.5 (West Supp. 1979) (misdemeanor - no permanent criminal record); Colo. Rev.Stat. § 12-22-412(12) (1978 Repl. Vol.) (Class 2 petty offense - no criminal record); Minn.Stat.Ann. 152.15(1)-(5), .15(2) (5) (West Supp. 1979) (petty misdemeanor); N.Y.Penal Law 221.05 (McKinney Supp. 1978) (violation - no criminal record); N.C.Gen.Stat. § 90-94, -95(d)(4) (Michie 1979 Cum.Supp.) (minor misdemeanor); Ohio Rev.Code Ann. § 2925.11(C)(3), .11(D) (Page 1978 Cum.Supp.) (minor misdemeanor - no criminal record); Or.Rev. Stat. § 167.207(3) (1975) (civil offense).