Licit and Illicit Drugs
by Edward M. Brecher and the Editors of Consumer Reports Magazine, 1972
It is often said that little is known about the psychological and physical effects of marijuana on the human user. This is a simple error of fact. In addition to many hundreds of significant papers reporting marijuana research through the past century, an impressive series of official investigating bodies have reviewed all of the available evidence and have presented their findings at length. The most important of these official marijuana investigation reports are listed here.
In addition to these official investigations, four outstanding books on marijuana by individual authorities, and one important symposium, were published in 1970 and 1971. In alphabetical order by author, they are:
Remarkable as it may appear, all five of the reports of investigating bodies listed above, ranging in date from 1894 to 1970, and all of the books listed are in substantial agreement on substantially all major points of fact.
We have chosen, accordingly, to summarize and review in some detail only one of these major studies: the Interim Report of the Le Dain Commission. This decision was reached on several grounds:
(1) The Le Dain Commission's Interim Report is the most recent of the official investigations and therefore takes account of recent research not available for the earlier investigations.
(2) The findings and conclusions of the Le Dain Commission Interim Report are a fair sample of the findings and conclusions of the other studies.
(3) The drug scene in Canada on which the Le Dain Commission focuses is very similar in many respects to the comparable drug scene in the United States; and the problems Canada faces are very similar to United States problems.
(4) In our opinion, the methodology followed by the Le Dain Commission, in collecting data concerning other drugs as well as marijuana, is a model that future investigating bodies in the United States might well follow.
(5) Finally, the marijuana recornmendations of the Le Dain Commission's Interim Report seem to us in many respects directly applicable to United States conditions.
Four of the five members of the Canadian Commission of Inquiry brought to their task a broad experience in public affairs and social problems, but relatively little knowledge of drug use: Gerald Le Dain, Q.C., Chairman, Dean of the Osgoode Hall Law School, York University, Toronto; Marie-Andree Bertrand, Associate Professor of Criminology, University of Montreal; Ian L. Campbell, Dean of Arts, Sir George Williams University, Montreal; and J. Peter Stein, social worker, Vancouver.
The fifth member of the commission, Dr. Heinz E. Lehmann, Clinical Director of the Douglas Hospital in Montreal, is an internationally known authority on drugs, a Fellow of the American Psychiatric Association, a past president of the American College of Neuropsychopharmacology, and the author of more than 140 medical papers and publications.
Like the Indian Hemp Drugs Commission three-quarters of a century earlier, the Le Dain Commission adopted at the outset of its inquiry a "policy of the open ear." It held twenty-one days of formal hearings in twelve Canadian cities from coast to coast, traveling some 17,000 miles. Equally important, the commission listened to young people actually familiar with the drug scene, including many drug users. For this purpose it held numerous informal hearings on college and university campuses and in coffeehouses located near the heart of the drug scene of various cities (much as an 1884 Royal Commission had held hearings in a British Columbia opium den). To protect witnesses, an understanding was reached with the Royal Canadian Mounted Police, Canada's federal police agency, that appearances and statements "would not be exploited for law enforcement purposes." 2 In addition, witnesses were permitted to testify anonymously, some of them in private, and to submit anonymous statements; the press cooperated by refraining from publishing photographs. In all, the commission estimated, nearly 12,000 Canadians had attended these formal and informal hearings up to February 1, 1970.
Opinions and feelings have poured forth in the hearings with great spontaneity, particularly in the more informal settings [the Interim Report notes]. The Commission has been deeply impressed, and on several occasions, moved by the testimony which it has heard. It has been struck by the depth of feeling which [drug use] and the social response to it have aroused. As a result of the initial phase of its inquiry, the Commission is more than ever convinced that the proper response to the non-medical use of psychotropic drugs is a question which must be worked out by the people of Canada, examining it and talking it over together. It goes to the roots of our society and touches the values underlying our whole approach to life. It is not a matter which can be confined to the discrete consultation of experts, although experts obviously have their role, and a very important one, to play.3
Experts did play an important role in the Le Dain Commission deliberations. Scores of eminent Canadian scientists concerned with all aspects of drug use-the biochemical and pharmacological as well as the sociological and psychological-either -testified personally or participated in the preparation of written submissions on behalf of the Royal Canadian Mounted Police, the Addiction Research Foundation of Ontario, the Narcotic Addiction Foundation of British Columbia, l'Office de la Prevention et du Traitement de l'Alcoolisme et des Autres Toxicomanies, numerous religious groups, and other respected Canadian organizations. Experts and organizations from the United States also submitted data and opinions; and members of the commission visited western European countries, consulting with drug authorities there and examining the European drug scene for themselves. Thus the inquiry was truly international.
The strictly psychopharmacological data were coordinated by a staff member specially trained in drug research, Dr. Ralph D. Miller. Chapter 2 of the Interim Report, entitled "Drugs and Their Effects," 4 prepared by Dr. Miller with the assistance of Dr. Charles Farmilo, is one of the most authoritative short statements of drug effects (beneficial and damaging) available, and is central to the conclusions that the commission reached.
Despite intensive American and Canadian law-enforcement efforts, the Le Dain Commission learned, marijuana smoking has become endemic in Canada-and here it cites high-school, college, and general population surveys showing levels of use quite comparable to those in the United States, reviewed above. Also as in the United States, use has spread from the "youth culture" to older age groups:
The Commission has ... been made aware of what appears to be an extensive and growing marijuana use by adults. The evidence of such use has come to us largely from the statements of individuals, many of whom have given private testimony, and from a large volume of correspondence received at the Commission's office. . . . Most were married and on the whole claimed to have reached an average or above average level of education. The Commissioners have spoken to physicians, lawyers, bankers, politicians, teachers, scientists, pilots, business executives and journalists, to mention only a few, who have smoked marijuana or hashish. Many of these reported using the drug with colleagues and many expressed the opinion that the use of these drugs would increase among their friends and associates.5
Why do so many young people smoke marijuana?
In the United States, a variety of reasons have been suggested:
The Le Dain Commission's Interim Report cites a quite different set of factors. In this as in other respects, the commission goes far beyond previous official reports and, largely as a result of its willingness to listen directly to young people, pioneers new ground. While many of its findings will come as a surprise and shock to nonsmokers of marijuana, these findings deserve careful consideration if the contemporary marijuana explosion is to be understood. "A major factor appears to be the simple pleasure of the experience," the Le Dain Commission explains. "Time after time, witnesses have said to us in effect: We do it for fun. Do not try to find a complicated explanation for it. We do it for pleasure."' 6
This pleasure explanation, the report adds, is offered not only by college students but also by adults in the working world.
A mother of four and a teacher said: "When I smoke grass I do it in the same social way that I take a glass of wine at dinner or have a drink at a party. I do not feel that it is one of the great and beautiful experiences of my life; I simply feel that it is pleasant and I think it ought to be legalized." 7
A witness directly involved in work with drug users is quoted in much the same vein:
The commission partially accepts this "we do it for fun" explanation.
We feel it would be a serious error, at least as far as cannabis use is concerned [the Interim Report declares] to think of use as symbolic of or manifesting a pathological, psychological or even sociological state. Simple pleasure, similar to that claimed for the moderate use of alcohol, or food, or sex, is frequently offered as the general explanation for most current drug use. This is particularly true of the growing number of adult users (who share perhaps little else but their taste for cannabis with the members of the "hip" culture). It is no doubt true that for some the use of drugs is a reflection of personal and social problems. But the desire for certain kinds of psychological gratification or release is not peculiar to the drug user or to our generations. It is an old and universal theme of human history. Man has always sought gratifications of the kind afforded by the psychotropic drugs.9
This use of marijuana for pleasure, the Interim Report continues, must not be interpreted as meaning that the motivation is trivial. On the contrary, it is one among many indications that the younger generation has profoundly reevaluated the proper role of pleasure in human life:
In addition to this happiness-and-pleasure motive, however, the Le Dain Commission notes that a number of young people also cite self-improvement as a reason for drug use:
In these respects, the Interim Report adds, marijuana is seen as quite different from alcohol:
Feeling this way about his drug, the report continues, the cannabis user naturally "seeks to convert others to what be sincerely believes to be a superior outlook and life style. The smoking of cannabis becomes a rite of initiation to a new society and value system. These are aspects of cannabis use, particularly among the younger, more idealistic members of our society, which merit serious consideration in any attempt to measure its potential for growth." 13 LSD users, of course, voice these self-improvement and other idealistic themes with even more fervor than marijuana users.
On the whole, the Interim Report views these idealistic claims with some sympathy:
The Interim Report notes that drug use is not indispensable for achieving these new insights, and that it may in some cases be only a temporary stage in reaching fresh insight:
Many former drug users, the Le Dain Commission continues,
Modern drug use would definitely seem to be related in some measure to the collapse of religious values-the ability to find a religious meaning of life. The positive values that young people claim to find in the drug experience bear a striking similarity to traditional religious values, including the concern with the soul, or inner self. The spirit of renunciation, the emphasis on openness and the closely knit community, are part of it, but there is definitely the sense of identification with something larger, something to which one belongs as part of the human race.16
Against this background, it is hardly surprising that the Le Dain Commission opposes the imprisonment of young people for the possession or use of marijuana. It is in exploring a wide range of alternatives to suppression and imprisonment that the commission makes its second major contribution to a reasonable consideration of marijuana.
As a first step toward improving the social response to the nonmedical use of drugs, the Interim Report suggests, society must abandon the transparent pretense that it considers all such use of drugs as ipso facto and per se evil and in need of suppression. This pretense is no longer tenable:
In place of the pretense that the alcohol, caffeine, and nicotine one generation uses are nondrugs while the marijuana its children use is evil, the Interim Report recommends that each drug be judged on its merits: "The extent to which any particular drug use is to be deemed to be undesirable will depend upon its relative potential for harm, both personal and social." 19
Against this background, the Le Dain Commission reviews the allegations traditionally made against marijuana, and reaches conclusions generally similar to those reached by the Indian Hemp Drugs Commission, the Panama investigating committees, the LaGuardia Committee, the Wootton Subcommittee, and other responsible bodies which have critically reviewed the evidence. It concludes, for example, that marijuana is not an addicting drug. Users do not develop tolerance in the classical sense-the kind of tolerance that leads to increasing the dosage. The Commission takes note, however, of the statements of some users "that if they stay 'high' for several days in a row the drug experience loses much of its freshness and clarity and, consequently, they prefer intermittent use."21 Whether or not this is a tolerance effect, it is clearly a beneficent one.
Physical dependence on marijuana, the report adds, has not been demonstrated; "it would appear that there are normally no adverse physiological effects or withdrawal symptoms occurring with abstinence from the drug, even in regular users." 21 Reports to the contrary from the East are suspect. "Since hashish is smoked with large quantities of tobacco and other drugs in many Eastern countries, these mixtures could be responsible for the minor symptoms reported ." 22 Marijuana, it is true, may in some cases produce psychological dependence-but "psychological dependence may be said to exist with respect to anything which is part of one's preferred way of life. In our society, this kind of dependency occurs regularly with respect to such things as television, music, books, religion, sex, money, favourite foods, certain drugs, hobbies, sports or games and, often, other persons. Some degree of psychological dependence is, in this sense, a general and normal psychological condition." 23
The short-term physiological effects of marijuana use, the report continues, "are usually slight and apparently have little clinical significance." 24 Even overdose produces little acute physiological toxicity; "sleep is the usual somatic consequence of overdose. No deaths due directly to smoking or eating cannabis have been documented." 25 The stepping-stone theory that marijuana use leads to heroin use is stated but given little credence. "In Canada . . . it appears that heavy use of sedatives (alcohol and barbiturates) rather than cannabis has most frequently preceded heroin use." 26 And again: "Persons dependent on opiate narcotics generally have a history of heavy alcohol consumption ." 27 The same, as noted in Part I of this Consumers Union Report, is true in the United States.
The commission takes notice of the fear that marijuana smoking, like cigarette smoking, might lead to lung cancer and other lung pathology. No evidence currently exists, it points out, to support this view. Moreover, "the quantity of leaf consumed by the average cigarette smoker in North America is many times the amount of cannabis smoked by even heavy users. The present pattern of use by regular cannabis smokers in North America is more analogous to intermittent alcohol use (e.g., once or twice a week), than to the picture of chronic daily use presented by ordinary tobacco dependence." 28 The commission adds, however, that "the deep inhalation technique usually used with cannabis might add respiratory complications." 29
With respect to psychoses and other adverse psychological effects associated with marijuana, the Le Dain Commission report is on the whole quite reassuring. "Although there are some well documented examples of very intense and nightmarish short-term reactions (usually among inexperienced users in unpleasant situations and with high doses), these cases seem to be relatively rare and generally show a rapid recovery. Although many regular users have had an experience with cannabis which was in some way unpleasant, 'freak-outs' are apparently rare." 30 A Montreal psychiatrist of broad experience with adverse reactions to other drugs, Dr. J. R. Unwin, is quoted as reporting in the Canadian Medical Association Journal in 1969: I have seen only three adverse reactions in the past two years; all following the smoking of large amounts of hashish and all occurring in individuals with a previous history of psychiatric treatment for psychiatric or borderline conditions."31
The United States experience, the commission notes, has in general been similar. Thus Dr. David E. Smith of the Haight-Ashbury Clinic in San Francisco is cited as reporting that he had not observed any cases of "cannabis psychosis" among the 35,000 marijuana users attending that clinic.32
* Other Los Angeles observers have failed to confirm the Ungerleider findings. Thus Dr. George D. Lundberg, associate professor of pathology at the University of Southern California School of Medicine, and two colleagues, with the aid of a computer, searched the records of 701,057 consecutive admissions to the Los Angeles County-University of Southern California Medical Center from July 1, 1961, to January 1, 1969. Nine admissions involved marijuana, "Total marijuana users in the region served by this hospital during this time period arc estimated to be in the hundreds of thousands, with tens of thousands of frequent or chronic users." Of the nine admissions, three were marijuana smokers, who experienced "mild illnesses . . . transient euphoria, a dream state, dizziness, confusion, and hallucinations." Two patients recovered rapidly. "The third later was diagnosed as a chronic paranoid schizophrenic, a state which preceded his marijuana-induced hospitalization." Another patient ingested "a 'handful of marijuana leaves,' which produced drowsiness and headache with recovery following intravenously given fluid and cathartic therapy." Five patients had "mainlined" marijuana-four a seed extract and the fifth a leaf "juice"; they became acutely ill with "nausea, vomiting, fever, chills, shock, tachycardia [rapid heartbeat], weakness, headache," and an increase in white blood cells; all recovered following the "intravenous administration of fluids, antibiotics, and steroids. . . . a variety of comparative studies indicated that hospital admissions due to alcohol, tobacco, barbiturates, amphetamines, tranquilizers, and certain nonprescription drugs (all legal) were much more frequent and the cases much more serious medically. . . ." 33
True, the commission adds, there are some reports pointing in the other direction. But reports from the Eastern countries are of dubious value, since no control groups were studied; the question is not whether some marijuana smokers (like some nonsmokers) develop psychoses, but whether the use of marijuana increases the incidence of psychoses. Dr. J. T. Ungerleider (later appointed a member of President Nixon's National Commission on Marijuana and Drug Abuse) reported observing 1,887 "adverse reactions" to marijuana in Los Angeles-but ... these data are difficult to interpret since no clear definition of adverse reaction is provided and no follow-ups were made."' 34 A few psychoses reported among United States forces in Vietnam may or may not have been traceable to cannabis use; they involved "individuals who have consumed large doses of potent material under conditions of increased physical and psychological stress ." 35 It is hardly necessary to invoke marijuana as an explanation for a few psychoses among soldiers billeted in a distant land and fighting on foreign fields. To the extent that psychoses do occur on rare occasions following cannabis use, they appear to be "a reflection of very special personality difficulties in the subjects involved or exceptional dose levels." 36
The Canadian report also notes two public-health considerations that have generally been lost from sight in the American antimarijuana literature. The first concerns the somewhat greater hazard of eating marijuana and hashish as compared with smoking them. "'Grass' and 'hash' are generally used interchangeably and great variations in potency of different samples are accommodated by the experienced user through a 'titration' of dose-i.e., intake is stopped when the smoker reaches a personally comfortable level of intoxication. Such precision is generally not possible with oral use, however, due to the long delay in action, and a 'non-optimal' effect is much more likely to occur with this practice." 37, In the United States this message rarely gets through to young people primarily because the channels of public-health communication are overloaded with generalized antimarijuana propaganda, much of it unreliable and counterproductive.
The second public-health consideration noted in the Canadian report concerns the relative hazards of marijuana and hashish. As has already been noted, the two are related much as beer or wine is related to whisky or gin; the effects of equivalent doses are rather similar, but it is somewhat easier to overdose with whisky, gin, or hashish than with beer, wine, or marijuana. While a prudent and experienced cannabis smoker can limit his hashish "high" to the level of his customary marijuana "high," the Interim Report cautiously suggests the possibility that a nationwide conversion from marijuana to hashish might significantly increase the incidence of deleterious effects. "Moderate use of the milder forms is one thing; excessive use of the stronger forms may be quite another." 38
In this context, the American and Canadian trend from marijuana toward hashish, beginning in 1969, was naturally a cause of concern for the Le Dain Commission. It attributes this trend in considerable part to American law-enforcement policies:
As marijuana repression becomes more efficient, of course, the cost of marijuana rises and the relative competitive advantages of smuggling hashish instead become even greater.
The Le Dain Commission does not conclude that marijuana is harmless. The available evidence, it indicates, warrants a cautious approach. Additional problems may arise as marijuana research proceeds and as experience accumulates. Even so, the commission points out, reliance on the "hazards" theme to curb marijuana smoking has proved fruitless or worse in the past and is unlikely to prove more effective in the future.
"Many of the young people who have appeared before us have been critical of the drug education to which they have been exposed," the Interim Report notes. "In particular, they have said that the attempts to use 'scare tactics' have 'backfired' and destroyed the credibility of sound information." 40 The commission itself fully endorses these complaints from its young witnesses:
In place of the traditional deterrents to drug use-imprisonment and scare campaigns-the Le Dain Commission's Interim Report then proceeds to outline in the broadest terms, yet with many detailed recommendations, a major reorientation of attitudes toward the nonmedical use of psychoactive drugs, and major changes in laws and public policies. Many of these recommendations apply to the opiates, the amphetamines, the barbiturates, LSD, and other psychoactive drugs as well as to marijuana, and they closely parallel suggestions to be made in Part X, Conclusions and Recommendations, of this Consumers Union Report; they will therefore be noted there. The Le Dain Commission's comments on some of the special problems of marijuana legislation and marijuana law enforcement closely parallel comments in the Wootton subcommittee report and other recent publications, and are considered here.
Legislators, the report continues, have responded to these special drug law enforcement difficulties by widening police powers of search and seizure in extraordinary ways. "Under the ordinary law, a person can be searched only after an arrest has been made, and in order to discover any evidence of the crime for which the arrest is made. Where there is not an arrest, there is no power to search premises without a search warrant. Again, such warrants assume specific evidence that the particular premises contain something incriminating. The point of these rules is to prevent indiscriminate interference with privacy in an attempt to turn up evidence of a crime and to prevent such interference by requiring cogent evidence that the person or premises affected are peculiarly worthy of search, before such search is authorized by an independent judicial officer who reviews the evidence." 43
Under the Canadian drug laws, in contrast, "there is no longer a real requirement that the police obtain external review and confirmation of their judgment. . . . Any police officer can enter and search any place other than a dwelling house without a warrant. 44
Even with respect to dwelling houses, moreover, Canadian drug law since 1929 has made available a legal device called a "writ of assistance." Such writs, as most United States schoolchildren learn in an early grade, were one of the causes of the American Revolution. An enforcement officer must apply to a judge for such a writ in the first instance, as in the case of a search warrant or warrant for arrest; but the writ of assistance does not specify any particular premises. "It remains valid so long as the officer retains his authority and it empowers him to enter any dwelling in Canada at any time, with such assistance as he may require, and search for narcotics and other proscribed drugs ." 45
Canadian drug law has also had a "no-knock" clause like the one enacted by the United States Congress in 1970; this clause provides that a peace officer armed with either a warrant or a writ of assistance may, "with such assistance as he deems necessary, break open any door, window, lock, fastener, floor, wall, ceiling, compartment, plumbing, box, container or any other thing," 46 may search any person found in such a place; and may seize and take away any narcotic or other proscribed drug in such place, as well as anything that may be evidence of the commission of a drug offense. (The possession of such extraordinary powers has not made the Canadian police forces noticeably more effective than American police forces in stamping out illicit drug trafficking.)
The difficulties of drug-law enforcement, the Le Dain Commission adds, have led to yet another "unusual practice-what is known in other jurisdictions as 'entrapment' but which may be described as 'police encouragement.' A person is encouraged by a-police agent to commit an offense [and is then prosecuted for that offense]. It is impossible to say how extensive this practice is, but it is reflected in a number of cases ." 47 Many people approve such laws and practices, of course, on the ground that the "drug evil" must be stamped out at any cost. The Le Dain Commission points out that the cost is very high:
We recommend that instructions be given to police officers to abstain from such methods of enforcement, and that the RCMP use its influence with other police forces involved in the enforcement of the drug laws to try to assure that there is a uniform policy in this regard.48 [The emphasis here and in the quotations below is in the original.]
The commission reviews the arguments in favor of legalizing marijuana, and indicates that serious consideration should be given to them. They are summarized in the Interim Report as follows:
2. This increase indicates that the attempt to suppress, or even to control its use, is failing and will continue to fail-that people are not deterred by the criminal law prohibition against its use;
3. The present legislative policy has not been justified by clear and unequivocal evidence of short term or long term harm caused by cannabis;
4. The individual and social harm (including the destruction of young lives and growing disrespect for law) caused by the present use of the criminal law to attempt to suppress cannabis far outweighs any potential for harm which cannabis could conceivably possess, having regard to the long history of its use and the present lack of evidence;
5. The illicit status of cannabis invites exploitation by criminal elements, and other abuses such as adulteration; it also brings cannabis users into contact with such criminal elements and with other drugs, such as heroin, which they might not otherwise be induced to consider.
For all of these reasons, it is said, cannabis should be made available under government-controlled conditions of quality and availability.49
The commission concludes, however, that legalization is not warranted at this time (spring of 1970). One reason for postponing the decision is that the scientific evidence concerning marijuana is not yet all in-but the Interim Report adds a cogent warning:
One reason for this lag in scientific information, the commission notes, is government restraints on research. "Many scientists interested in such research have expressed feelings of dissatisfaction and frustration with governmental research policy. They have stated to the commission that they have been unable to carry out such work under their own authority as scientists in the present atmosphere of restraint. They say that they have been frustrated by the administration of the formal and unwritten governmental policies which surround the right to undertake research in this field."
Many American scientists, of course, have expressed similar dissatisfaction and frustration.* One reason for this governmental repression of research, the Le Dain Commission suggests (though it does not actually state) is the fear that sound research may fail to support the traditional allegations against marijuana and may thus lead to a change in public policy. "The public, including interested scientists, are justly dissatisfied and impatient with the present state of research. The public does not know whom to blame, but it will not lightly tolerate an indefinite reliance on inadequate knowledge to justify a social policy which is coming under increasingly severe criticism."53 (Emphasis added.)
* An example of the perils of marijuana research in the United States was reported in Medical World News in 1969:
"At ten minutes before midnight last June 27, [a psychiatrist] was rousted out of bed ... by callers from the narcotics division of the Texas Department of Public Safety and the local police, callers armed with a warrant for the psychiatrist's arrest on a charge of marijuana possession and for a search of his home.
"[The psychiatrist] informed them that he did, indeed, have marijuana in his possession, not in his residence but in his adjoining office, where he used it in fully authorized research. He removed it from his office safe and turned it over to the officers, who confiscated it and arrested him. They also seized 208 Cannabis sativa plants the doctor showed them growing in his backyard.
"But he also showed them his permit to import marijuana, his Class 4 and Class 5 federal tax stamps covering marijuana used in research, and the paragraph in a booklet issued by the federal bureau of narcotics stating that Class 5 researchers may produce such quantities of marijuana and compound or manufactured marijuana preparations as are necessary for their research, instruction, or analysis.' [The psychiatrist] was nevertheless arrested, spent the night in the [county] jail and was released the next morning on $1,000 bond.
"Although it appeared unlikely that be would be prosecuted, [the psychiatrist] considers his research to have been effectively stopped, and himself to have been all but run out of town. 'My patients have been scared away,' he says, 'and my experimental subjects are afraid to come in because it was reported in the local papers that I was under surveillance for a month and that the police are watching me with binoculars." 52
A second reason given by the Le Dain Commission for not recommending the immediate legalization of marijuana was a purely practical one: public opinion was not yet ready (in the spring of 1970) for so drastic a change, and the recommendation would no doubt be rejected. . . . It is our impression that there has not yet been enough informed public debate. Certainly there has been much debate, but all too often it has been based on hearsay, myth and ill-informed opinion about the effects of the drug. We hope that this report will assist in providing a basis for informed debate. . ." 54
A third reason for delaying the legalization decision, the Interim Report adds, is that "further consideration should be given to what may be necessarily implied by legalization. Would a decision by the government to assume responsibility for the quality control and distribution of cannabis imply, or be taken to imply, approval of its use* and an assurance as to the absence of significant potential harm?" 55 Finally, the commission cites "jurisdictional and technical questions involved in the control of quality and availability." 56
* In other situations, it should be noted, the repeal of a punitive law does not imply official approval of the behavior that is legalized. Thus the New York state legislature years ago repealed that state's law punishing suicide attempts, a number of state legislatures have in the past few years repealed state laws against homosexual acts between consenting adults, and the Oregon legislature in 1971 repealed that state's law restricting cigarette smoking by minors-not because the legislatures approved or wanted to encourage suicide attempts, homosexual acts, and cigarette smoking by minors, or because they thought such acts harmless, but because they recognized that criminal penalties are an unwise and ineffective response to such acts.
Both in the United States and Canada, the argument is sometimes made that international treaty obligations under the United Nations Single Convention on Narcotics Drugs, 1961, prevent the legalization of marijuana. The Le Dain Commission gives short shrift to this argument. Any country can withdraw from the Single Convention on January 1 of any year by giving six full months' notice; withdrawal "would not, of course, be in violation of international obligations since it is a right expressly provided for in the Convention." 57
One step short of legalizing marijuana would be the abolition of all penalties for the possession of marijuana-leaving trafficking a criminal offense. The Interim Report concludes that this policy merits conscientious study, with respect not only to marijuana but to the psychoactive drugs in general, including heroin.
One Le Dain Commission argument in favor of abolishing the offense of simple possession is the high cost of enforcing the possession law: "Its enforcement would appear to cost far too much, in individual and social terms, for any utility which it may be shown to have. . . . The present cost of its enforcement, and the individual and social harm caused by it, are in our opinion, one of the major problems involved in the non-medical use of drugs." 58
Unenforceability, the commission continues, is another argument in favor of abolishing all penalties against possession. "Insofar as cannabis, and possibly the stronger hallucinogens like LSD, are concerned, the present law against simple possession would appear to be unenforceable, except in a very selective and discriminatory kind of way. This results necessarily from the extent of use and the kinds of individual involved. It is obvious that the police can not make a serious attempt at full enforcement of the law against simple possession. . . ."59
It is often argued that, just as the continued commission of murder is not a sound reason for repealing the murder laws, so the smoking of marijuana is not a good reason for repealing the marijuana laws. The Le Dain Commission distinguishes the two cases:
Moreover, it is doubtful if its deterrent effect justifies the injury inflicted upon the individuals who have the misfortune to be prosecuted under it. It is, of course, impossible to determine the extent to which the law against simple possession has deterrent effect, but certainly the increase in use, as well as the statements of users, would suggest that it has relatively little. The relative risk of detection and prosecution may be presumed to have a bearing upon deterrent effect.60
The likelihood that a marijuana user will be brought to court for possession, the commission adds, "may be under one percent" -hardly an effective deterrent.*
* In the United States, where an estimated five million marijuana cigarettes were smoked daily in 1971, the likelihood of being arrested on any particular occasion of use was far less than one chance in five thousand-and for many users the risk approached zero.
On the question of deterrence the Interim Report also cites a 1967 opinion of the Ontario Court of Appeal: "Those, of whom the accused is one, who have accepted the use of psychedelic drugs as socially desirable as well as personally desirable course of conduct are not as likely to be discouraged by the type of punishment ordinarily meted out to other traffickers. Such treatment will likely serve to confirm them in their belief in the drug cult . . . 62
Yet another reason for repealing the possession laws is briefly stated in the Interim Report: "The extreme methods which appear to be necessary in the enforcement of a prohibition against simple possession-informers, entrapment, Writs of Assistance, and occasionally force to recover the prohibited substance-add considerably to the burden of justifying the necessity or even the utility of such a provision." 63
But the Le Dain Commission waxes most eloquent in attacking the possession laws on the ground of the direct harm they do, not only to their victims but to respect for law and order:
The harm caused by a conviction for simple possession appears to be out of all proportion to any good it is likely to achieve in relation to the phenomenon of nonmedical drug use. Because of the nature of the phenomenon involved, it is bound to impinge more heavily on the young than on other segments of the population. Moreover, it is bound to blight the life of some of the most promising of the country's youth. Once again there is the accumulating social cost of a profound sense of injustice, not only at being the unlucky one whom the authorities have decided to prosecute, but at having to pay such an enormous price for conduct which does not seem to concern anyone but oneself. This sense of injustice is aggravated by the disparity in sentences made possible by the large discretion presently left to the courts.64
Despite these impressive reasons for repealing the laws against mere possession of marijuana and other psychoactive drugs, a majority of the commission resolved not to recommend immediate repeal. More time was needed, the majority concluded, to study arguments against repeal made by the police. The commission indicated, however, that it would announce a decision in 1972.
This was the only point on which the Interim Report was not unanimous. The one woman member of the Le Dain Commission, Professor Bertrand, did not want to postpone the repeal recommendation even for one year. She wrote:
In lieu of recommending immediate repeal of the laws against simple possession, the Le Dain Commission majority recommended the immediate abolition of imprisonment as a penalty for simple possession:
* This recommendation, the commission made clear, applies to simple possession of heroin and other illicit drugs as well as to marijuana.
To replace imprisonment the commission recommended "as an interim measure, pending its final report, that the Narcotic Control Act and the Food and Drugs Act be amended to make the offense of simple possession under these acts punishable upon summary conviction by a fine not exceeding a reasonable amount. The Commission suggests a maximum fine of $100." 67
A prisoner who cannot pay his fine or who refuses to pay it is ordinarily liable to imprisonment. To prevent imprisonment in such cases, the commission "also recommends that the power . . . to impose imprisonment in default of payment of a fine should not be exercisable in respect of offenses of simple possession of psychotropic drugs. In such cases, the Crown should reply on civil proceedings to recover payment." 68
The proposal that offenders found guilty of possessing marijuana should not be imprisoned may seem radical indeed to some readers of this Consumers Union Report. But, as the Le Dain Commission points out, the courts of Canada had reached much the same conclusion on their own initiative in 1969, without waiting for the Interim Report. Canadian court statistics for the period from August through December 1969, this report declares, "reveal that imprisonment is now being rarely, if at all, resorted to in cases of simple possession of marijuana and hashish and, it would appear, LSD, and that such cases are now generally disposed of by suspended sentence, probation or fine ." 69 Thus the key Le Dain Commission marijuana recommendation, far from representing a radical departure from current Canadian policy, does little more than recommend that the current practice of most Canadian courts be made uniform and mandatory.
Much the same trend appears to be under way in the United States courts, though at a slower pace. As the Select Committee on Crime of the United States House of Representatives commented in its First Report on Marijuana, dated April 6, 1970: "We have observed that the penalties for marijuana possession or even for selling are generally not imposed and that jail sentences are the rare exception rather than the rule."'* 72
* Judge Charles W. Halleck of the District of Columbia Court of General Sessions, in testimony before the House of Representatives Special Subcommittee on Alcoholism and Narcotics on September 18, 1969, explained why he no longer gives jail sentences to youthful marijuana smokers:
"If I send [a long-haired marijuana offender] to the jail even for 30 days, Senator, he is going to be the victim of the most brutal type of homosexual, unnatural, perverted assaults and attacks that you can imagine, and anybody who tells you it doesn't happen in that jail day in and day out, is simply not telling you the truth....
"How in God's name, Senator, can I send anybody to that jail knowing that? How can I send some poor young kid who gets caught by some zealous policeman who wants to make his record on a narcotics arrest? How can I send that kid to that jail?
"I can't do it. So I put him on probation or I suspend the sentence and everybody says the judge doesn't care. The judge doesn't care about drugs, lets them all go. You just simply can't treat these kinds of people like that." 70 Dr. David E. Smith of the Haight-Ashbury Medical Clinic reported in June 1971 that among the psychiatric patients served by his clinic were 25 young men with serious psychoses-all of whom were imprisoned for possession of marijuana and all of whom suffered psychiatric breakdowns following homosexual rape while they were incarcerated.71
To reduce without delay the damaging effects of law enforcement on drug users, the Le Dain Commission went on to recommend "that the police, prosecutors and courts exercise the discretion entrusted to them at various stages of the criminal law process so as to minimize the impact of the criminal law upon the simple possessor of psychotropic drugs, pending decision as to the whole future of possessional offenses in this field." 73
The commission also recommended a substantial reduction in the penalties for trafficking and for possession for the purpose of trafficking and a major restriction of the definition of "trafficking." Canadian penalties at the time of the Interim Report included a maximum of life imprisonment for either trafficking in marijuana or possession for the purpose of trafficking. This maximum could be meted out to a young person sharing a marijuana cigarette with a friend or giving marijuana to a friend-a gift defined as "trafficking" in Canadian law and as "sale" in United States law.
In Canada, importers and exporters of cannabis were also subject to a maximum of life imprisonment-and to a minimum mandatory sentence, which the judge could not reduce, of seven years' imprisonment. In lieu of these penalties, the Le Dain Commission recommended that minimum mandatory sentences be abolished altogether and that the maximum, sentence be eighteen months for all cannabis offenses including importing, exporting, and trafficking. "We further recommend that the definition of trafficking be amended so as to exclude the giving, without exchange of value, by one user to another of a quantity of cannabis which could reasonably be consumed on a single occasion. Such an act should be subject at most to the penalty for simple possession" 74-that is, a reasonable fine not to exceed $100.
In yet another respect the Le Dain Commission sought to minimize the impact of the criminal law on young marijuana offenders-indeed, on offenders generally:
The Final Report of the Le Dain Commission was not available when this Consumers Union Report was completed. The guidelines laid down by the commission's Interim Report, however, are sound guidelines for the formation of policy in the United States. Consumers Union's own detailed recommendations, which go considerably further, appear below in Part X.
Licit and Illicit Drugs