Cannabis, better known to the public as marijuana, is a plant that is widely used in its

“dried herbal form…as a psychoactive drug.”1 The reasoning for its usage has varied throughout

the years, ranging from recreational, religious, and spiritual, to the more modern day medicinal

use. Given that its use dates as far back as the third millennium B.C., one may question how a

mere plant currently holds such controversy. Surprisingly, no major congressional acts were

made that criminalized its use until 1937 with The Marihuana Tax Act – “a bill introduced to

U.S. Congress by Commissioner of the Federal Bureau of Narcotics, Harry Aslinger.”2 While

there remain concerns for legalization that are definitely relevant (marijuana is a drug after all),

there are also many benefits that are continuously overlooked.

As Americans, we remain living in what has been termed as a “culture of fear,” and this

has become a barrier that we have not been able to cross. Whether this adaptation to this culture

is the result of the over sensationalized media, age-old superstitions, or a convenient mixture of

both, we remain stuck in an unchanging rut. All the while, we are prevented from seeing the

other side – the one that could potentially solve many of our economic blunders and aid in

repairing the terrible economic situation that we are currently faced with. Legalization appears to

be the most beneficial, easiest solution in remedying these issues; but due to a lack of knowledge

about the true facts behind its criminalization, it is no wonder why we continue to pose harsher

penalties as the years go on. This research seeks to examine the history of marijuana, its ultimate

criminalization, the Constitutional violations that arise, and the possible economic benefits that

legalization poses as an alternative to incarceration. It seeks to be as open-minded as possible, in

regards to both proponent and opponent arguments, as well as conducting a thorough analysis of

the current situation(s).

1 “Cannabis (drug)." Wikipedia. Web. 1 Oct 2009. <http://en.wikipedia.org/wiki/Cannabis_(drug)>. 2 “The Marihuana Tax Act of 1937.” Wikipedia. Web.

<http://en.wikipedia.org/wiki/Marihuana_Tax_Act_of_1937>.

1

In order to better understand the controversy behind marijuana use, it is essential for one

to first have some brief knowledge of its background. To put it bluntly, marijuana is not a drug in

and of itself, but actually the dried flowers that are derived from both the Cannabis sativa and

indica plants are what is smoked. The cannabis plant itself was initially used to produce hemp, a

fiber that can be used to create paper, building materials, etcetera. Ironically, it is also one of the

first plants grown by the newly settled colonists of America in the early 1600s. The various

manners that hemp could be used in proved to be innovative and beneficial – especially during

this period. During this time, the threat of using marijuana posed an almost obsolete risk, and the

government even went so far as to encourage its production. As a matter of fact, “in [as early as]

1619, the Virginia Assembly passed legislation [that required] every farmer to grow hemp...[it

was even] allowed to be exchanged as legal tender in [some states] such as Pennsylvania,

Virginia, and Maryland.”3 Its use in these manners continued to thrive until just after the Civil

War when imports and other domestic materials began to replace the need for hemp as a major

resource. A mere two centuries later (the later 19th century), the marijuana leaf became an

acceptable ingredient in a number of medicinal products and could even be found overtly for sale

in local pharmacies. It was also in this same period that the use of marijuana began to shift,

becoming somewhat of a fad in the U.S. This view of marijuana as recreational continued to

follow in the coming centuries, and changed many people’s opinions on its safety.

Somewhat out of place (but for the sake of staying in order of time), The Pure Food and

Drug Act of 1906 was passed. Due in large part to journalist Samuel Hopkins Adams’ “The

Great American Fraud,” and author Upton Sinclair’s The Jungle, (and perhaps the Supreme

Court ruling in the infamous “Slaughterhouse Cases”), the public became exposed to the

3 PBS Online. “Marijuana: Marijuana Timeline in the United States.” 15 October 2009. <http://www.a1b2c3.com/drugs/mj005.htm>.

2

potential harms that food and drugs could have on users. Having realized that there was a need to

make a change, the public outcry finally resulted in the implementation of federal legislation.

Simply put, the Act “required that manufacturers of patent [medications] list [all] ingredients on

the label.”4 It is suggested that after its passage, the sale of drugged medicines was reduced by

nearly one third; although this may be exaggerated, there is surely a bit of truth to this statistic, as

a reduction is apparent.5 The passage of such an Act may have been a first and simple step, but

its benefits are still present; it potentially led the way for the current Food and Drug

Administration (FDA), which regulates pretty much all legal drugs, foods, etcetera. It also paved

the way for more government involvement in implementing legislation criminalizing marijuana

amongst various other “illicit” drugs in the coming years.

While the cannabis plant in its entirety initially had a use for other than recreation, this

began to change quickly beginning in the early twentieth century. After the Mexican Revolution

of 1910, Mexican immigrants began to come to the United States in great number. Upon arrival,

many of them began to introduce Americans to the intoxicating effects and alternative

recreational use of the marijuana leaf. As can be expected of this time period, the association of

the drug with the Mexicans fueled racist notions and caused the formation of anti-drug

campaigners whom used propaganda to warn everyone of the “Marijuana Menace.” These anti-

drug campaigns brought attention to the terrible crimes brought forth from marijuana use – as

well as the Mexicans who used it. These campaigns instilled a sort of fear and resentment toward

the Mexican immigrants, especially during the Great Depression as massive unemployment

began to rise. As can be expected, Mexicans became the scapegoats for the marijuana issue.

Racially infused “research” even went so far as to propose a link between the burgeoning crime,

4 Marshall, Eliot. Legalization: A Debate. Chelsea House Publishers, 1988. Print.5 Ibid.

3

violence, and other socially intolerable behaviors with the usage of marijuana. Not surprisingly,

many of these so-called “deviant” behaviors were activities that immigrants engaged in. Whether

escalated through resentment toward immigrants, fear, or an even balance of both, marijuana use

slowly began to become a political issue.

The first federal attempt at reducing harmful usage of drugs in general, began in the year

1930, when the Federal Bureau of Narcotics (FBN) was created; Harry J. Aslinger was seated as

the first Commissioner, and remained in position for a long period. Merely one year later, in

1931, 29 of the 50 states had already made the move to outlaw marijuana. Following suit, and

perhaps attempting to establish a serious name for itself, the FBN adopted the Uniform State

Narcotic Act; the act was not necessarily federal legislation, but more so, an outcome of the

increased pressure put on the federal government to take action. The act encouraged state

governments to accept responsibility for control of the drug problem; state governments could

“accept responsibility” by having the same safeguards and regulations for drugs in all of the

states so as to create uniformity. This is due in large part to the fact that all states followed

different sets of rules such that one could receive a lesser punishment in one state, only to receive

a harsher one in another. This attempt at uniformity was meager at best, but it gave the people an

idea that the government was serious about ridding society of drugs.

Both feeding off of, and building on the newfound controversy, French director Louis

Gasnier produced the propaganda film “Reefer Madness”; however, the Motion Pictures

Association of America banned the showing of any narcotics in films6, and so the film’s impact

is little known. Although the film was probably not responsible, in 1937 the first Congressional

move was made. The Marihuana Tax Act was passed, making the “possession or transfer of

6 PBS Online. “Marijuana: Marijuana Timeline in the United States.” 15 October 2009. <http://www.a1b2c3.com/drugs/mj005.htm>.

4

cannabis illegal throughout the United States under federal law, excluding medical and industrial

uses, in which an expensive excise tax [was to be paid].”7 Although the Act did not necessarily

criminalize marijuana use on its own, it played a significant role in leading the pathway. (This

factoid can be seen in one of the more modern arguments for marijuana criminalization – the

skewed view that it is a “gateway drug” for users of harder drugs). It also placed an economic

value on marijuana as a commodity; as time progressed, one could see the changing definition of

what had once been a mere plant.

In the midst of laws prohibiting marijuana specifically, Congress passed another

narcotics-control act. The Harrison Act, implemented in 1914, was passed in part due to two

motivations – moralistic and economic. In search of better opportunities for trade in the Orient,

the State Department of the U.S. found the need to improve relations with China. Conveniently,

during this time, China was involved in its own fight against illicit drugs. Unlike the U.S.’

marijuana problem, “Chinese administrators were deeply [involved] in a battle against opium

smoking.”8 Turning this fight to their favor, American leaders decided to join themselves with an

international drug control program. The actual law that was passed in 1914 made it a requirement

that only certain drugs be registered and monitored. Perhaps borrowing from the Pure Food and

Drug Act, patent medications were still allowed to contain cocaine and opiates; however, they

were to be labeled, and the amount had to be regulated. Unlike in the past, when drugs could be

purchased freely, drugs could now be dispensed by doctors only in person. This eliminated the

chances of the everyday citizen getting a hold of narcotics. Similar to the manner in which

doctors prescribe medicines nowadays, the Act also made it a requirement to keep extensive

records. Pharmacies, and any other wholesale buyers, were also made to register and keep track

7 “The Marihuana Tax Act of 1937.” Wikipedia. Web. <http://en.wikipedia.org/wiki/Marihuana_Tax_Act_of_1937>.

8 Marshall, Eliot. Legalization: A Debate. Chelsea House Publishers, 1988. Print.

5

of all purchases that were made. Although the Harrison Act did not necessarily act to criminalize

marijuana and/or its use, it can definitely be viewed as a major step in preparing for “The War on

Drugs.”

Not surprisingly, in as little as three years, history began to repeat itself. During the

Second World War, imports of hemp and other necessary materials that could be used for

making marine cordage, parachutes and other items became scarce. In reaction to this issue, the

U.S. Department of Agriculture launched a program referred to as “Hemp for Victory.” This

program mirrored the 1619 legislation that had also required farmers to produce hemp but its

main difference lie in the fact that the government provided those farmers whom were willing to

comply, with hemp seeds and draft deferments. Shortly after its creation, a whopping 375,000

acres of hemp were produced.9 Unfortunately, this is probably one of the only times during this

century that hemp was actually viewed in a positive light, especially after considering the

government’s next steps at criminalization.

Similar to the fear that led America down the path to criminalizing marijuana use, it is

key to briefly introduce what is often referred to as the “war on alcohol” – Prohibition.

Beginning in the nineteenth century (the same time that the fad of using marijuana began to

occur), prohibition was the period in history that made the manufacture, sale, and transportation

of intoxicating liquors illegal.10 A new “Temperance” movement was created as an effort to

discourage people from consuming alcohol and to further exemplify its goal. Much like the

“Marijuana Menace,” the movement attempted to blame alcohol for acts of everyday violence,

and especially other crime and murder. Just as 29 states outlawed marijuana in 1931, by 1916,

over half of the United States had statutes prohibiting alcohol. Perhaps an even larger step 9 PBS Online. “Marijuana: Marijuana Timeline in the United States.” 15 October 2009. <http://www.a1b2c3.com/drugs/mj005.htm>.10 Rosenberg, Jennifer. "Prohibition." n. pag. Web. 7 Oct 2009.

<http://history1900s.about.com/od/1920s/p/prohibition.htm>.

6

toward federal involvement than the 1937 Marihuana Tax Act, the 18th Amendment was added to

the U.S. Constitution in 1920, further prohibiting the sale and manufacture of alcohol. The 18th

amendment, in its entirety held that:

“Section 1. after one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.” 11

Similar to the current situation, the ratification of the 18th amendment resulted in opposition, and

a rise in organized crime was established. Comparable to the black market where marijuana can

be purchased illegally, during Prohibition there were those whom took advantage of the great

demand for alcohol and created bootlegged versions of the most demanded products. This

resulted in a great amount of profit – a profit so high that continuing to supply the illicit

substance illegally far outweighed the potential cons. Surprisingly, another striking similarity

between alcohol prohibition and marijuana criminalization is the argument for a potential

medicinal use. In times of Prohibition, many physicians frowned upon the illegality of alcohol

because it was often prescribed for therapeutic purposes much like marijuana is nowadays. In as

early as 1933, Prohibition was already being repealed (this began with the repeal of the 18th

amendment). The resulting amendment, (the 21st), gave states the right to restrict or ban the

purchase or sale of alcohol. Perhaps the most compelling fact is how short term Prohibition

actually was, and how there is not as much controversy concerning alcohol consumption in the 11 "Amendment XVIII." LII / Legal Information Institute. Cornell Law, Web. 7 Oct 2009.

<http://topics.law.cornell.edu/constitution/amendmentxviii>.

7

present day. An essential question to ponder is if something so similar in foundation proved

ineffective, why does the government insist on repeating a failed history?

In the years that followed Prohibition, stricter legislation was proposed. In 1951, The

Boggs Act was implemented. Unlike the Harrison Act, which did not criminalize marijuana

directly, the Boggs Act sought to establish mandatory minimum federal sentences for the mere

possession of cocaine, opiates, and marijuana. As time passed, Presidents also changed, and with

them came new perspectives on criminalizing drugs. In 1952, Dwight D. Eisenhower was elected

to office; he is one of the main actors in implementing the “war on drugs.” His actions include,

but are not necessarily limited to, the establishment of the U.S. Interdepartmental Committee on

Narcotics (1954), which although largely symbolic, paved the way for President Nixon.

Yet another case of history repeating itself, in came the Nixon administration. Nixon

perhaps made the issue of drug use more relevant than it actually may have been at the time. His

stance undoubtedly caused a stir of panic, thus causing the general public to follow through with

his orders. As racist intuitions began to dominate, marijuana became coined as a “Mexican

drug.” The widespread fear of the importation of marijuana from Mexico across the borderline

became Nixon’s first attempt at criminalization. Following the advice of many modern day

nativists, Nixon implemented “Operation Intercept” (OI) in 1969 – essentially, OI was a

blockade of the U.S.-Mexico borderline. OI used severe disciplinary searches of traffic along the

border so as to attempt to force Mexico to stop its casual marijuana use. It was a notorious

failure, but it proved the great lengths and direction that the war on drugs was heading into.

In the following year, the federal government passed the Comprehensive Drug Abuse

Prevention and Control Act of 1970. The Act consolidated all of the drug laws, reduced the

penalties for possessing marijuana, and expanded the national drug abuse program. A section of

8

the Act, ‘the Controlled Substances Act,’ implemented a series of categories for regulation,

manufacture, and distribution of drugs. This section also formulated a series of schedules, or

classes for dividing certain drugs into; Schedule I drugs have the highest potential, while those

from Schedules II to V decrease in potential for abuse.12 The passage of this Act was made in an

effort to focus on drug abuse and treatment for drug addicts. Ironically, this desire to treat addicts

was short-lived, and a more tough on crime approach began to take reign.

Shifting from this view of treatment as beneficial, Nixon implemented the Drug

Enforcement Administration in 1973. Created in part “in order to establish a single unified

command to combat ‘an all-out global war on the drug menace,’”13 the DEA was a consolidation

of the Bureau of Narcotics and Dangerous Drugs (BNDD) and the Office of Drug Abuse Law

Enforcement (ODALE). The structure of the DEA is very similar to that of the Federal Bureau of

Investigation (FBI), and the two agencies have a shared, concurrent jurisdiction. The main

difference between the FBI and DEA is that the sole purpose of the DEA is to enforce the U.S.

drug policy. This was perhaps one of the most significant steps to criminalizing illicit drug use,

and perhaps marijuana in particular. (In fact, it is one of the more powerful agencies within

government at present).

As the role of executive changed hands once again, the early eighties began to see a

change in the governmental role in the “war.” With the Reagan administration, children became

the focus of the issue. In 1982, first lady Nancy Reagan began to tour elementary schools in

order to advise students about the dangers of illegal drug use and persuade them not to go down

that path. During this period, Drug Abuse Resistance Education (D.A.R.E) a long running police

12 “The Drug War.” JusticeLearning: Issues. Web. 8 Oct 2009. <http://www.justicelearning.org/justice_timeline/Issues.aspx?IssueID=4&TimelineID=45&TimelineEventID=461>.

13 “DEA History.” U.S. Drug Enforcement Administration. Web. 8 Oct 2009. <http://www.justice.gov/dea/history.htm>.

9

officer taught class for students in kindergarten through twelfth grade, was implemented. This

era saw the creation of the slogan “Just Say No,” which has become engrained in the minds of

many, even today. However, the focus on children began to shift a decade later in 1994 when

then Senator (currently Vice President), Joe Biden proposed the passage of the Omnibus Crime

Bill. The Bill had a surprisingly harsh provision within it – federal execution of drug kingpins

was now tolerable. This idea expresses how serious the direction of the war on drugs began to

lead. When it is in our history that the death penalty cannot be used in cases of rape, but can be

used in situations related to drug lords is disheartening and admittedly terrifying.

These occurrences may appear irrelevant to the state of California, but given that all

legislation discussed thus far has been federal, it has affected all fifty states. However, a piece of

legislation within the war that pertains to solely California comes from as recent as 1996 and

2001. California took a risk and established the Medical Marijuana Program (MMP). This

program provided eligible patients and/or their caregivers with a voluntary medical marijuana

identification card and registry program. Similar to the idea of a pharmacy record, the program

also implemented an online-accessible database that keeps all qualified cardholders on file.14 In

1996, Proposition 215 (also referred to as the Compassionate Use Act of 1996) was passed; the

2003 extension clarified the rules of medicinal marijuana use. Essentially, in order to apply for,

and have a Medical Marijuana Identification Card issued, a patient must acquire

recommendation from their physician to use medicinal marijuana.15 This was a huge step in any

form of legalization for California seeing as only thirteen of the fifty U.S. has made that same

move; (Alaska, California, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada,

14 “Medical Marijuana Program.” California Department of Public Health. 10 Oct 2009. Web. <http://www.cdph.ca.gov/programs/MMP/Pages/Medical%20Marijuana%20Program.aspx>.

15 Ibid.

10

New Mexico, Oregon, Rhode Island, Vermont, and Washington are the only states to have legal

access to marijuana for medicinal use).16

Although mistakes and failed attempts are supposed to be a foundation for what should

be changed to ensure success, the United States of America has obviously not learned this. It

seems that throughout the centuries we as a nation have continued to make the same mistakes as

we go through the motions, and this did not stop at Prohibition. Ironically, we are in a current

term of Prohibition – this time dealing with illicit drugs in place of alcohol. Similar to the

prohibition of alcohol, or the “war on alcohol,” came what is currently referred to as “the war on

drugs.” First given this term in 1969 by then President Richard Nixon, this “war” sought to rid

marijuana use into that of oblivion. Hidden underneath what was being fed to the public as a

necessary movement to curb the “public enemy number one” (trafficking and drug use), the

implementation of this “war” gave the Feds even more elevated rights. In Christian Parenti’s

analysis of Nixon’s “splendid little war,” in his book Lockdown America, he goes as far as

accusing the “Feds [of attaining] the necessary latitude to beef up local policing and rationalize

the nation’s haphazard and often contradictory patchwork of criminal law.”17 In suggesting such,

Parenti brings forth the issue of government involvement; to him, the government tries to find

any reason possible to get involved and “help” out, often doing so as a facade.

As can be expected, whenever the government is involved, in order to ensure that the

“maximum” rights are allotted, many rights must actually be taken away. Unfortunately, much of

the time these rights are some of the most basic, human rights. An example of such can be seen

when we review both our federal and state Constitutions. It is important to review the federal

Constitution prior to analysis of the California one because the former is the “supreme law of the 16 “Active State Medical Marijuana Programs.” The National Organization for the Reform of Marijuana Laws. 9

October 2009. Web. <http://norml.org/index.cfm?Group_ID=3391>.17 Parenti, Christian. Lockdown America: Police and Prisons in the Age of Crisis. 2nd ed. New York, NY: Verso,

2000. Print.

11

land,” meaning that no state’s Constitution can dismiss any legislation that is written in the

federal version. Ironically, while the state and/or government are supposed to uphold the federal

Constitution prior to implementing their own laws, there are many amendments that are being

violated when the criminalization of marijuana comes into question. These amendments in

question follow, with both my own personal analysis and a bit of help from Ed Rosenthal and

Steve Kubby’s book Why Marijuana Should Be Legal.

The First Amendment most often known solely for its freedom of speech clause, states

that:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”18

Plain and simple, according to this amendment, the government is not supposed to make any

laws that are in regards to religion, speech, press or assembly. One may question how this

amendment is related to the legalization of marijuana because the answer is somewhat subtle for

those unaware of many religious practices. Cannabis has been a part of religious rituals dating as

far back as the third millennium B.C. While some of these practices in question may not exist

anymore, this idea still holds relevance. Some currently practiced and notable religions using

cannabis are Rastafarians and Hindus, in which the former claims that through use of the drug

“the user [is aided in achieving] greater mystical insight into the nature of the universe,” and the

latter “[is brought closer to the Hindu god Shiva by consuming ‘bhang’ a cannabis-milk

infusion].” Dismissing these two religious practices is a direct violation of the First Amendment

because criminalizing marijuana use disallows these groups from the spiritual rather than

recreational use that marijuana has. In so doing, the government is all but disregarding those

18 “The United States Constitution.” We the People. 8 October 2009. Web. < http://constitutionus.com/>.

12

religions that use marijuana in their religious practice because they simply disagree with them.

This is both unfair and unconstitutional because a law can never truly be a beneficial one if it is

merely the result of a questionable disagreement. If it were just law to create Amendments every

time the government disagreed with an established organization, there would be obvious issues.

Also contained in the First Amendment is the issue of freedom of speech. The intimidation that

is caused by the Drug Enforcement Agency (DEA), National Institute on Drug Abuse (NIDA),

and the National Institute of Mental Health (NIMH) causes a type of silence that should not be

ignored. These organizations are the direct result of government, and thus, only one of the many

ways in which the government plays a significant role in abridging the Constitutional rights of its

people. Although there are definite violations to the First Amendment, there are many additional

violations to the Constitution that are the product of the war on drugs.

The Fourth Amendment brings forth the issue of privacy, an issue that although not

explicitly stated within the text of the document, has become an interpreted value. According to

this Amendment,

“the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”19

In other words, we should not have to worry about unreasonable searches and seizures that are

not being conducted due to evidence. However, under current drug laws, even the smallest

amount of evidence can prompt the government to issue a search. And to make matters even

worse, there have been relatively recent rulings by the U.S. Supreme Court such as the 1984 case

of United States v. Leon (468 U.S. 902), that have established the “good faith exception” – an

19 Ibid.

13

exception that allows the government to use evidence obtained from searches based on unlawful

search warrants if officers honestly and reasonably believed they were lawful.20 While it is

impossible to decide whether every good faith exception is actually relevant, the reality that not

all bad warrants are used in the ignorance of law enforcement is a bit disheartening. This

exception is all but saying that it shall be acceptable for people to be harassed simply as a result

of a “tip” that they may possess even miniscule amounts of marijuana. This is unacceptable, and

yet another gross misuse of power at the hands of the government. How are the people supposed

to feel “[safe] and secure in their persons, houses, papers, and effects,” if something as unreliable

as a tip allows for the government to conduct what many may define as unreasonable? What a

person does in their home is supposed to be private, but these new laws make almost any action

vulnerable to search. As weak as it may appear, this is a justification for why so many people

have such distrust for the government; after all, if the government is allowed to make such

sporadic decisions, it is understandable that so many people find themselves in hiding.

The Fifth Amendment begins the rights and trials of the offender; according to it,

“no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when an actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”21

Obviously, there are many violations of this Amendment by the federal government. For one, it

states that no person “shall...be subject for the same offense to be twice put in jeopardy…” This

means that the government is given one just attempt to convict a criminal, or in this case, one

20 Samaha, Joel. Criminal Procedure. 7th ed. Belmont, CA: Wadsworth Pub Co, 2008. 350. Print.21 “The United States Constitution.” We the People. 8 October 2009. Web. < http://constitutionus.com/>.

14

prosecution for the same crime. However, offenders are often punished under both the state and

federal system, thus, subjecting them to a type of double jeopardy. This creates a contradiction

because if the government cannot stay within the bounds of its own laws, how can they

reasonably expect a human being to do the same? Moving along, the next line states that “no

person…shall be compelled in any criminal case to be a witness against himself…” This rule is

violated simply through the use of drug testing. Whether random or scheduled, drug testing calls

for the offender to submit samples of a biological specimen, whether urine, hair, blood, sweat, or

oral fluid/saliva to determine whether a specific drug is present or absent in the offender’s

system.22 It is difficult to argue that submitting to such a test is not a direct product of self-

incrimination – something that is explicitly restricted by the Fifth Amendment. Being forced to

take this type of test surrenders one’s ability to be defined as “innocent” because there is no way

of getting around it. Further, the Amendment goes on to state that “[no personal shall be]

deprived of life, liberty, or property without due process of law.” Due process of law, as defined

by the Constitution is “a fundamental, constitutional guarantee that all legal proceedings will be

fair and that one will be given notice of the proceedings and [have] an opportunity to be heard

before the government acts to take away one’s life, liberty, or property.”23 In essence, the right to

due process is really a question of the right to fairness – a right that the government violates

every day. In addition to this blatant unfairness, one must also take into consideration the current

impact of forfeiture laws. According to a legal dictionary, “forfeiture” is “the involuntary

relinquishment of money or property without compensation as a consequence of a breach or

nonperformance of some legal obligation or the commission of a crime.”24 While it may appear

to be playing devil’s advocate, forfeiture laws are yet another violation of the Fifth Amendment 22 “Drug Testing.” Wikipedia. Web. <http://en.wikipedia.org/wiki/Drug_test>.23 “Due Process of Law.” The Free Dictionary. Web.

<http://legal-dictionary.thefreedictionary.com/Due+Process+of+Law>. 24“Forfeiture.” The Free Dictionary. Web. <http://legal-dictionary.thefreedictionary.com/forfeiture>.

15

because within the definition of forfeiture lies the phrase “without compensation.” It cannot be

argued that possession of marijuana is necessarily a right since it is by definition, illegal.

However, what one can argue is the fact that possession may be viewed as property to many

offenders. Loosely defined, “property” refers to “that which a person owns; the possession or

possessions of a particular owner.”25 Nowhere in the definition can the word “legal” be found –

thus, some may interpret marijuana as their property. Under forfeiture law, the government is

given the power to revoke this property without compensating the offender. This, as are many of

the government’s tactics, is another contradiction. The Fifth Amendment states that “private

property [shall not] be taken for public use without just compensation.” The government abuses

this right of forfeiture by seizing marijuana and claiming their right to do so because it is illegal.

Although a bit outdated, federal marijuana seizures in the state of California in 2002 weighed in

at approximately 11,172.7 kilograms.26 The offender receives no “just compensation” under the

forfeiture laws, which in and of itself is fair – but only under these specific laws. Seeing as the

federal Constitution is the supreme law of the land, and property is not defined, offenders are

basically entitled to some form of just compensation. All said, the Fifth Amendment is perhaps

the most grossly violated of the Amendments; however, the unfortunate violations continue.

The Sixth Amendment has many similar elements of the Fifth Amendment, but deals

more closely with the trial rights of the accused. According to the text of the Sixth Amendment,

“in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by a impartial of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining

25 "Property." Dictionary.com Unabridged. Random House, Inc. 15 Nov. 2009. <Dictionary.com http://dictionary.reference.com/browse/property>.

26 Library of Congress. "Marijuana Availability in the United States And Its Associated Territories." Library of Congress -- Federal Research Division. (2003): Print.

16

witnesses in his favor, and to have the assistance of counsel for his defense.”27

In essence, what used to be taken seriously is now taken lightly. The “right to a speedy and

public trial” has become so defunct that it is currently clouded behind plea bargains and

programs for drug diversion. There also remains the promise for a less hefty sentence by

“accepting ‘responsibility’” even if the accused is not guilty. This means that potentially

innocent ‘offenders’ relinquish their constitutional right to a speedy and public trial as a result of

intimidation by the government. Although this may indeed lead to the assumption that an

offender is guilty, one cannot be so quick to jump to conclusions when they have not been in the

same situation. When one is faced with the possibility of losing their personal liberty, this may

cause them to take the easy way out – even if it means that, they have to accept responsibility for

something that they did not do. As unfortunate as this fact may be, it is an everyday occurrence

that the government uses as a tactic to go after those whom are weak and vulnerable. This puts

those in government at the top and gives them practically unlimited power. Along with this

revelation, many offenders do not feel as though they have the actual right “to be confronted

with the witnesses against him [nor] to have [the] compulsory process for obtaining witnesses in

his favor,” because of two conflicting factors. For one, witnesses against the offender are often

confidential informants, and their identity cannot be divulged; therefore, the right to cross-

examine them is taken away. Secondly, even those witnesses in his/her favor are often afraid of

speaking up for them without the promise of immunity. As stated previously, when the question

of losing one’s liberty arises, many will choose the easy way out even if it is not right by

conventional standards.

The Seventh Amendment follows through with the theme of trials – the text states that

27 “The United States Constitution.” We the People. 8 October 2009. Web. < http://constitutionus.com/>.

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“in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”28

The right to a trial tried by a jury [of one’s peers] suggests that the citizens themselves have the

ability to decide the fate of a given offender without involvement of the government. By granting

the common citizen the right to judge whether a person is guilty, the government is obligated to

admit that their laws may not be the best at all times. Whether due to pride, or the inherent need

be “right,” it appears too much to ask of the government to allow a jury of common citizens to

interpret (and possibly nullify) laws in their own manner. Similar to the ‘acceptance of

responsibility’ that is often asked of offenders, “the courts use threats of punishment to pressure

defendants into pleading to a charge.”29 In essence, time is saved, another potential “innocent” is

“proven” to be “guilty,” and the government is yet again able to keep their pride in being “fair,”

“just,” and most importantly, “right.” As the trial process moves forward, the question of what

happens to those that are actually convicted. Not surprisingly, the next violated Amendment

follows the trend of being consecutive.

The Eighth Amendment deals with the question of bail, something that obviously can

only be dealt with if an “offender” is found to be guilty. Under the text of the following,

“excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”30

Currently, a violation of the drug laws as a whole hold serious (and at times), excessive fines.

According to the California Health and Safety Code § 11357-11361:

“HS § 11357(a) Except as authorized by law, every person who possesses any

28 Ibid.29 Rosenthal, Ed, and Steve Kubby. Why Marijuana Should Be Legal. 1st ed. New

York, NY: Thunder's Mouth Press, 1996. Print.30 “The United States Constitution.” We the People. 8 October 2009. Web. < http://constitutionus.com/>.

18

concentrated cannabis shall be punished by imprisonment in the county jail for a period of not more than one year or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment, or shall be punished by imprisonment in the state prison

(b) Except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100).

(c) Except as authorized by law, every person who possesses more than 28.5 grams of marijuana, other than concentrated cannabis, shall be punished by imprisonment in the county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment.

(d) Except as authorized by law, every person 18 years of age or over who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-related programs is guilty of a misdemeanor and shall be punished by a fine of not more than five hundred dollars ($500), or by imprisonment in the county jail for a period of not more than 10 days, or both.

(e) Except as authorized by law, every person under the age of 18 who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-related programs is guilty of a misdemeanor and shall be subject to the following dispositions:

(1) A fine of not more than two hundred fifty dollars ($250), upon a finding that a first offense has been committed.

(2) A fine of not more than five hundred dollars ($500), or commitment to a juvenile hall, ranch, camp, forestry camp, or secure juvenile home for a period of not more than 10 days, or both, upon a finding that a second or subsequent offense has been committed.

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HS § 11358Every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment in the state prison.

 HS § 11359Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment in the state prison.

HS § 11360(a) Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment in the state prison for a period of two, three or four years.

(b) Except as authorized by law, every person who gives away, offers to give away, transports, offers to transport, or attempts to transport not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100).

HS § 11361(a) Every person 18 years of age or over who hires, employs, or uses a minor in unlawfully transporting, carrying, selling, giving away, preparing for sale, or peddling any marijuana, who unlawfully sells, or offers to sell, any marijuana to a minor, or who furnishes, administers, or gives, or offers to furnish, administer, or give any marijuana to a minor under 14 years of age, or who induces a minor to use marijuana in violation of law shall be punished by imprisonment in the state prison for a period of three, five, or seven years.

(b) Every person 18 years of age or over who furnishes, administers, or gives, or offers to furnish, administer, or give, any marijuana to a minor 14 years of age or older shall be punished by imprisonment in the state prison for a period of three, four, or five years.”31

31 “California Health and Safety Code.” California Law. 12 October 2009. Web. <http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=hsc>.

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Whilst these punishments and/or fines may not seem grossly disproportionate on their face, they

are excessive in their conversions. 28.5 grams is a mere 0.06283 pounds – being just over could

potentially refer to any amount, even 28.51 which would hardly equate to much more than the

specified amount! This is an extremely trivial amount, especially when matched with the prison

time served and/or fines imposed for having just over. Another question to keep in mind is where

the money that is paid for fines and/or bailed goes. While it is likely that a portion of the money

that is paid to take care of fines is used to support those in prison, the likelihood that every cent is

used to cover these costs is slim. As unfair as this disclosure is to offenders, it is even more so

for taxpayers. Not only do we have little say about where our tax money is going, but also in

addition, there remains the government’s ability to potentially profit off of our ignorance.

Moving forward, there still remains the issue of cruel and unusual punishment. Although

marijuana has been construed as a harmful, psychoactive drug, it is crucial to remember that it is

a plant that we are speaking of. Statistically, there have been punishments along the lines of life

without parole for “serious” marijuana offenders; this is disgusting seeing as those guilty of even

the most heinous crimes such as murder and rape are rare to receive the same sentence. That

being said, there are many excessive fines and cruel and unusual punishments that are being

sentenced without question.

The Ninth Amendment is different from the previous ones because it “reserves to every

American all rights not considered in the Bill of Rights”32:

“the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”33

32 Rosenthal, Ed, and Steve Kubby. Why Marijuana Should Be Legal. 1st ed. New York, NY: Thunder's Mouth Press, 1996. Print.33 “The United States Constitution.” We the People. 8 October 2009. Web. < http://constitutionus.com/>.

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In lamens terms, the Ninth Amendment is saying that simply because the Constitution defines

only some rights, there is not a limitation on rights that are not defined within the text.

Obviously, the authors took into consideration that time is not immemorial – it changes through

the years – and so, the rights written into the Bill of Rights may have to change as new

generations are born. Certainly, the recreational usage of illicit drugs was not a problem at this

time. In fact, drugs could be grown or bought freely at the time that the Bill of Rights was

written. Thus, with these factors in mind, it is essential that one is able to understand that while

we are limited in “ability,” we should not be limited by “power.” Therefore, the government

should not have the ability to take away rights that have not been defined by the Constitution

simply because they are not present within the text. Present events must be taken into

consideration prior to conviction, something that the government almost never does; an over

reliance on what the Constitution states is used in an unfair manner, given that the document was

written hundreds of years ago and has not been edited since.

Lastly, the Tenth Amendment better solidifies the meaning of the Ninth. In its text,

“the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”34

More specifically, the Tenth Amendment essentially grants powers that are not reserved to the

federal government nor prohibited by the state governments, to the people (or states). Basically,

the authors of the Bill of Rights are acknowledging the limited powers held by the federal

government. Unfortunately, whether due to poor education in the field, or because of fear, we the

people remain in the dark when it comes to our actual rights and powers. Having knowledge of

this, the federal government continuously takes advantage of its nearly unlimited powers; all the

while, leaving no bona fide opportunity for change by the people. It is necessary for someone to

34 Ibid.

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come forward and discuss with the common people the rights that are being abridged due to

ignorance. In this case, although the government has made marijuana use illegal, it is the job of

the people whom oppose such rulings to fight them. This may be difficult since we are made to

believe that once the United States Supreme Court is involved in a case and gives its decision, no

more can be done to change the precedence; but it is definitely something that needs to be taken

note of.

Throughout numerous attempts to criminalize and eliminate marijuana use within the

United States, there remains a successful underground black market that continues to thrive and

profit off due to the government’s unwillingness to legalize. Particularly in California, a leading

state for indoor marijuana growth, it remains to be the most widely abused illicit drug. Although

a preference for the domestically grown plant has become the more likely alternative, quite a bit

of what is sold in California is actually imported from none other than those that introduced us to

it, the country of Mexico. Further solidifying the fear that nativists had at the time that OI was

implemented, the present import rate shows Mexico’s influence. Although this cannot be

dismissed, it is essential to remember why California is such a prime target. Given that the U.S.-

Mexico border is deeply rooted in San Diego, California, the importation of the plant is easy.

With ease comes benefits, and perhaps also causes opportunity. People feed off of opportunity,

especially when it is something that may in profit, and marijuana obviously poses as a huge

window for profit.

Perhaps what is most important to mention before delving into any type of research is the

reasoning for why legalization appears to be the more beneficial alternative. There are obviously

many arguments that could be used in favor of decriminalization; however, for the purposes of

maintaining a more narrow focus, I have chosen only two. One, the economic focus, seeks to

23

introduce the potential economic benefits. Criminalization for any given crime costs; the amount

of course changes for each one, but regardless a large portion of the state of California’s budget

is delegated to enforcing the law and the criminalization of various issues. In order to fully

understand why California is in so much trouble in regards to the economy, I believe that looking

into perhaps one of the precursors can have a significant impact on getting us out.

Criminalization uses a specified amount of our budget – a budget that is funded by taxpayers.

Since we are paying into something that we may not all agree with, it is essential to have a grasp

on current affairs. In addition, we cannot fight for something that we are ignorant of.

Legalization in and of itself poses a potential solution to many of our economic problems

whether through reduction of law enforcement, taxation, crime, etcetera. The other aspect that I

have chosen to focus on is the element of space. Prison space is limited – if thousands of beds are

taken by drug offenders, how can we expect to have room enough to house “real” criminals such

as rapists and murderers? Statistically, California prisons are already overcrowded. In fact,

earlier in just this year, a “three-judge panel…tentatively ruled that the state must reduce its

prison population by as many as 57,000 people.”35 In so doing, it is imperative for the state to

figure out various ways to change the current system. I propose that a comprehensive drug court

system may be able to significantly reduce the incarceration rate; these points will be further

delved into, and hopefully a potential plan can be suggested.

Prior to introducing any economic ideas, it is best to give some relevant background on

some simple economic concepts. The basic property of economics is supply and demand. Supply

represents how much the market can offer versus demand which refers to how much of a product

or service is desired by buyers. The law of supply and demand works conversely in that supply is

35 “Budget Breakdown – Sacramento Politics – California Politics.” Sacramento Bee. Web. <http://blogs.wsj.com/law/2009/02/10/ruling-on-california-prison-overcrowding-cut-57000-prisoners/>.

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dependent on demand, and vice versa. In simple terms, if more people want something, they will

be willing to pay more for it; thus, the demand goes up. Because demand goes up, the price rises

as well – the seller knows that he/she can earn more money for the product if the demand for it is

great. In the case of marijuana, “as long as demand for illegal drugs exists, it will always be in

someone’s interest to take risks and supply them.”36 Similarly, if the demand decreases, the price

will decrease along with it – regardless if demand is low, the seller still possesses a great deal of

product and must find a way to make at least some profit off of what remains. Therefore, supply

and demand can also be tracked by price.37 While this economic principle may seem irrelevant to

this topic, it is actually extremely relevant to many issues that California is faced with. Some of

these issues that will be further discussed are: the costs of incarcerating drug offenders, the

possibility of taxation, and various budgetary cuts.

Perhaps one of the largest reasons that marijuana ought to be legalized is due to the

overpopulation of prisons in California. “The Department of Corrections and Rehabilitation

manages 33 prisons, 37 camps, and 12 community facilities with a staff of 52,982 in institutions,

2,566 in parole, and 6,173 in administration. The inmate count was 174,282 in 2007 (of which

about 12.7 percent of state inmates and 12.4 percent of federal inmates incarcerated for drug

violations [were] serving time for marijuana offenses; a figure around 33,655 for state and

10,785 federal)38, and the agency’s budget in 2007-2008 was $9.7 billion. (Average agency cost

per inmate in 2008 = $35, 587).”39 A predominant American ideal of keeping the “bad guys”

36 Sieberg, Katri K. “Illegal versus Legal Drugs.” Criminal Dilemmas: Understanding and Preventing Crime. 2nd ed. Berlin, Germany: Springer-Verlag, 2005. Print.

37 Social Studies for Kids. “Supply and Demand: Basic Economics Part 1 & 2.” Retrieved on 20 October 2009. <http://www.socialstudiesforkids.com/articles/economics/supplyanddemand2.htm>.

3836. “Pot Prisoners Cost Americans $1 Billion a Year.” MPP: Marijuana Policy Project. Web. 10 February 2007. Retrieved on 14 October 2009. <http://www.mpp.org/states/california/news/ca/pot-prisoners-cost-americans-1.html>.

39 “Corrections Statistics for the State of California.” National Institute of Corrections. 17 Oct 2009. Web. <http://www.nicic.org/Features/StateStats/?State=CA>.

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away from society is only costing us billions per year rather than achieving the potential goal of

deterrence and/or elimination of the crime altogether. The question one must ponder is the

ultimate goal that the government is after by criminalizing marijuana. Are they merely using it as

a means of cleaning up the streets, lessening any potential crime, or simply because they do not

truly understand the effects of marijuana? Regardless of the government’s reasoning, we must

also take into account what prison is meant to do. Merriam-Webster’s dictionary of law defines a

prison as “an institution usually under state control for confinement of persons serving sentences

for serious crimes.” 40 However, what one must also ponder is what constitutes a serious crime?

According to law, a “serious crime” would be termed a felony, a crime that holds the potential

one year or longer in prison; a crime that would be serious enough to fall under the

considerations of a felony would be crimes such as murder or arson. Taking this definition

literally makes it difficult for one to understand how an act that has come to be known as a

“victimless crime” can be associated with two extremely harmful crimes against the person.

There are obvious alternatives to prison, but unfortunately, our current criminal justice

system has become over reliant on the punitive aspect rather than rehabilitating offenders.

Rehabilitation makes sense for two reasons: for one, it would eliminate unnecessary expenditures

that are spent annually, and two, it would lessen the already overcrowded prisons of California.

In support of the former, a comprehensive drug court system would only cost about $2,500 per

year for each offender. In other words, subtracted from the above-mentioned cost of $35,587 per

inmate, the state would have an overall saving of approximate $33,087 per inmate – an

astonishing $1,470,386,280 if multiplied by the 2007 combined state and federal inmate count.

Adding this knowledge to our current budget crisis, and the future seems pretty bleak. Statistics

40 "Prison." Merriam-Webster's Dictionary of Law. Merriam-Webster, Inc. 23 Nov. 2009. Dictionary.com. <http://dictionary.reference.com/browse/prison>.

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show that “California faces a budget deficit of more than $41 billion over the next 18 months.”41

Although it may not have quite the largest impact, legalization would aid in reducing our

spending by $1.5 billion. That $1.5 billion could have a drastic impact as the years go on, and

could potentially be put into a fund for drug offender rehabilitation. It seems that the fear that

holds people away from rehabilitation is the idea of recidivism. However, if one were to look at

recidivism rates, those whom actually participated in treatment diligently (they went as they were

supposed to, and did not simply drop out) have a much lower recidivism rate than those that were

put into prison first. This makes sense because the prison aspect does not teach the offender ways

that they can change; in a sense, a prison is comparable to a school for criminals. Being locked

up with other criminals gives them the ability to learn new tips and tricks of getting around the

system – thus, we are only worsening our problems and spending more than we should be.

Perhaps the saddest truth regarding California’s proposed budget cuts in order to

compensate for a roughly $41.6 billion deficit is where the cuts are coming from. According to

the Sacramento Bee, a newspaper situated in the same city as Governor Arnold Schwarzenegger,

the proposed budget for 2009-2010 proposes astonishing spending cuts upwards of $16.5 billion.

These cuts include, but are certainly not limited to:

- “$5.2 billion cut to K-12 education and community colleges by reducing base funding under Proposition 98 to the minimum and giving school districts the ability to reduce the 2009-10 school year by five days.

- $1.7 billion by furloughing state employees by two days a month until June 30, 2010, permanently eliminating Columbus Day and Lincoln’s Birthday as paid state holidays and eliminating overtime pay for holidays. About $282 million of the savings comes from layoffs and shifting state employee health care from CalPERS to managed care.

- $1.4 billion by reducing monthly grants to the federal minimum for low-income aged, blind and disabled on Supplemental Security

41 Kloberdanz, Kristin. “The Great California Fiscal Earthquake.” Time Magazine. Retrieved on 14 Oct 2009. Web. <http://www.time.com/time/nation/article/0,8599,1870299,00.html>.

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Income/ State Supplemental Program and eliminating payments to recent immigrants.

- $1.1 billion from CalWORKS welfare programs by reducing welfare grants by 10 percent, cutting benefits at 60 months for some recipients, requiring reviews every six months and eliminating a cost of living adjustment due in June 2010.

- $788 million to the Department of Corrections and Rehabilitation by eliminating parole supervision for all but those who have committed serious, violent or sexual crimes and reducing the medical budget by 10 percent.

- $744.2 million to Medi-Cal by eliminating some treatment options such as optometry, dental and psychological, limiting benefits for some legal immigrants, raising the income eligibility requirements to pre-2000 levels, cutting hospital reimbursement rates by 10 percent and eliminating cost of living for county-based administration.

- $692 million by cutting the University of California and California State University budgets by 10 percent and eliminating the planned 7.5 percent budget increase in 2009-10.

- $459 million by eliminating general purpose grants to local transit agencies.

- $473 million by reducing state payments for In-Home Supportive Services health workers to the minimum wage, restricting services to the neediest recipients, increasing fees for some recipients and eliminating cost-of-living adjustment due in June 2010.

- $422.8 million to the Department of Developmental Services, about one fifth of which is a 3 percent cut to regional center providers. The remaining savings will be negotiated with the Legislature.

- $275 million by eliminating the state First Five Commission and shifting money – and half of the money from 58 county commissions – to children's health programs. Voters would have to approve changes to Proposition 10.

- $226 million by diverting money set aside in Proposition 63 for mental health services to fund mental health managed care. Voters need to approve the change.

- $163.4 million by continuing through June 2010 "one-time" cuts made in the current budget for state courts and eliminating the cost-of-living adjustment.

- $150 million by eliminating or consolidating a variety of state entities, including the elimination of the Integrated Waste Management Board and the California Conservation Corps. The savings estimate is soft, officials said, because it is unclear how the consolidations will take place.

28

- $87 million by making various changes to the Cal Grant program, including the elimination of new grants awarded on the basis of competition. Existing competitive grants would be maintained.

- $43.2 million by cutting the Legislature's budget 10 percent and eliminating a cost-of-living increase.

- $37.8 million by eliminating food stamps for legal immigrants not eligible for federal assistance.”42

Although there can be no denying that budget cuts are necessary in order to solve our budget

deficit, it is apparent from these statistics that the Governor and his body of people are not

looking at other areas that could obviously be cut without potentially harming people. The above

cuts all have one thing in common – they are harmful to the citizens of California. Not only do

many of these cuts rely on obvious layoffs, they also deal with basic necessities that every

California resident requires. By cutting the education budget, we are potentially risking the

future. As cliché as it may sound, the youth of today could possibly be those whom are

responsible for implementing drastic changes. If we are to limit, if not almost entirely take away

their abilities in accessing their right to a thorough education, we may never be able to see them

do what they are capable of. Add these cuts to the drastic ones in regard to healthcare, and we

only further our problems. While the future generation(s) is deprived of what they require to

move forward, those of generations past are being deprived of the healthcare system that they

diligently paid into for a great portion of their lives working through the decades. These also

include welfare program cuts because in a communal sense, taxpayers give up some of their pay

so as to place it into an almost insurance-like fund. This means that we knowingly give up a rate

of our paychecks in order to have something to fall back on if and/or when necessary. If welfare

is no longer available and people are caught up in difficult times, crimes may be the only

opportunity available in attaining things that are basic necessities.

42 “Budget Breakdown – Sacramento Politics – California Politics.” Sacramento Bee. Web. < http://www.sacbee.com/capitolandcalifornia/story/1510341.html >.

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Ironically, even with all of these budget cuts, law enforcement sees almost no change.

Although Governor Schwarzenegger initially won fervor from everyone for his promise to repeal

the car tax, he has ultimately found a replacement. He has implemented this replacement by

increasing the Vehicle License Fee (VLF), by about $12 per vehicle. Although this is quite a bit

of revenue when the number of vehicle owners in California is taken into consideration, where

the money is probably not going to end up in the place that it is supposed to go. The Budget for

Law Enforcement Grants went from a tremendously high $416.5 million in 2008-09 to an even

higher $499.6 million in 2009-10.43 This fact is simply ridiculous because not only is our tax

money rising from hiked up tax rates, we are also forced to pay more out in order to benefit a

system that obviously is not working. What makes this so disgusting are the obvious facts that

the government continues to overlook.

Further, on to the benefits that legalization could possibly hold, lie behind the possibility

of taxation. Similar to the increased “excise tax on alcohol” of $0.05 per drink that the 2009-10

budget proposes,44 a comparable excise tax could be implemented for the manufacture, sale,

and/or consumption of marijuana.45 Similar to the increase in budgetary costs that would result in

cutting back law enforcement in favor of treatment, this excise tax would be something even

more beneficial. More than likely, groups would argue that a new tax would not be in favor of

the people, but this is simply not true. Given the potential safeguards that can be found if

marijuana were legalized, it is highly probable that many people would want to purchase the

product. Not only this, but what is essential to remember and counter this argument is the fact

that although alcohol remains to have an excise tax, it has not affected its consumption. People

43 “California 2009 Budget Act.” Department of Finance. 12 Oct 2009. Web. <http://www.dof.ca.gov/budget/historical/2009-10/documents/Budget_Agreement_Full-Package-w.pdf>.

44 “Budget Breakdown – Sacramento Politics – California Politics.” Sacramento Bee. Web. < http://www.sacbee.com/capitolandcalifornia/story/1510341.html >.

45 "Excise." Dictionary.com Unabridged. Random House, Inc. 07 Dec. 2009. <Dictionary.com http://dictionary.reference.com/browse/excise>.

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still willfully purchase alcohol even though it may be costly, so what makes the option of being

able to purchase marijuana so different?

Although supportable arguments in favor of legalization, it would not be a qualified

argument without mention of those arguments supporting criminalization. To name just a few out

of the myriad of reasons why marijuana should stay criminalized: “[(1) legalization of marijuana

would create a “gateway” to all other illegal substances]; [(2)] it would significantly increase the

human and economic costs associated with drugs [prolonged marijuana use would cause

potential harm in regards to health in users]; [and (3)] it would cost billions of dollars and risk

millions of additional innocent lives.”46 These arguments come from Barry R. McCaffrey,

Director of the Office of National Drug Control Policy. While his stance may be a little extreme,

it is important to see viewpoints from even the most conservative of them, in order to be able to

firmly choose a stance. If one is unable to gain perspective from both sides, they do not have a

true grasp on a given subject and therefore cannot choose to support either side.

To coincide with the first argument of marijuana as being a possible “gateway” drug, one

must understand what a “gateway” drug insinuates. “The gateway drug theory is the hypothesis

that the habitual use of less deleterious drugs may lead to a future risk of using more dangerous

hard drugs and/or crime.”47 In other words, the use of less “harmful” or “damaging” (deleterious)

drugs as a first resort, may impact whether or not someone is likely to move along with harder

drugs. This is a contradictory theory for two reasons; one, it claims less deleterious drugs will

lead to more deleterious drug use. In so doing, those in favor of the theory are stating that they

believe that marijuana is less harmful than cocaine, PCP, methamphetamine, etcetera, and is

46 McCaffrey, Barry R. "Executive Office of the President of the United States, depository." The Destructive Impact of Drugs on the United States: How The Legalization of Drugs Would Jeopardize the Health and Safety of the American People and Our Nation. Washington, D.C.: Office of National Drug Control Policy, 1999. Print.

47 “Gateway drug theory.” Wikipedia. Web. <http://en.wikipedia.org/wiki/Gateway_drug_theory>.

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more closely related to the two legal substances alcohol and tobacco. If this is true, it disregards

their argument that marijuana use in and of itself is so detrimental. Given that this is perhaps the

most often used argument for justification of criminalization of marijuana, we are dismissing a

lot by noting its contradiction. The second contradiction lies in the fact that the gateway theory

is just that – a theory. Simply defined, a theory is “an idea or belief about something arrived at

through reasoning based on incomplete facts or information.”48 Thus, although a theory is

technically “proven” in time, it is not definite. There remain other possible explanations for

certain situations, some of which could also be the result of self-fulfilling prophecies. With these

facts kept in mind, it does not appear that the gateway theory can be used as a justified argument

when questioning the legality of marijuana.

While there are risks associated with taking virtually any drug, it is no wonder that taking

illicit ones potentially have the most serious side effects. Therefore, it is no wonder that the

opposition uses this possibility to conjure up yet another justification for why marijuana ought to

remain crimininalized. Despite the fact that marijuana may indeed have long term side effects,

one must be mindful that the potential for marijuana to have harmful side effects is more so

when it is illegal than vice versa. Under the current legal system, one can only obtain marijuana

illegally; thus, there is no assurance that what users are purchasing is indeed pure. What is

purchased on the black market holds the possibility of being laced with other illicit substances,

some of which may be even more detrimental to one’s health. If marijuana were to be legalized,

it would lessen the possibilities for such an occurrence, and may even ensure that its purity is

controlled and regulated.

48 "Theory." Dictionary.com Unabridged. Random House, Inc. 04 Dec. 2009. <Dictionary.com http://dictionary.reference.com/browse/theory>.

32

While these arguments may hold value in and of themselves, they cannot be thoroughly

accepted without mentioning other factors related to them. As can be expected with any good

argument, there are always two sides – those whom are proponents and side with the given

argument, and those in opposition whom disagree with it. In order to fully support one side, it is

imperative to explain both of these sides so that one can make an informed decision when

choosing a stance.

For one, while marijuana use may indeed create a sort of physical alteration, it does not

necessarily result in physical dependence for all users. Similar to legal drugs such as quinine,

valium, and thorazine, the psychoactive ingredient in marijuana tetrahydrocannabinol (THC)

remains in cells and other vital organs after its diffusion into the body.49 Marijuana in and of

itself has not been a cause of death per say, and there has never been scientifically correct

evidence that has shown an overdose.50 While it may appear that I am dismissing potential

harms, I am simply stating that the biggest worries are unfounded. If anything, chronic use is

said to have the effects comparable to that of tobacco; however, the likelihood that the often-

smaller quantities that are smoked can have the same effects is slim. In comparing tobacco to

marijuana (or THC), a much smaller quantity is necessary in order to produce the desired effect.

According to Miles Herkenham, a brain researcher at the National Institute of Health in

Bethesda, Maryland, “[marijuana is] completely different from all other drugs…the paucity of

receptors in the brain stem is crucial for explaining why it’s a safe drug…”51 Although there are

some minor, negative side effects such as temporary memory loss and impairments to

perception, its side effects overall are nothing compared to other substances.

49 Gerber, Rudolph J. Legalizing Marijuana: Drug Policy Reform and Prohibition Politics. Wesport, CT: Praeger Publishers, 2004. Print.

50 Marshall, Eliot. Legalization: A Debate. Chelsea House Publishers, 1988. Print.51 Gerber, Rudolph J. Legalizing Marijuana: Drug Policy Reform and Prohibition

Politics. Wesport, CT: Praeger Publishers, 2004. Print.

33

When taking into consideration the potential health effects of marijuana, one must also

regard the side effects that are caused by many other harmful substances that are actually legal at

present. These include, but are not necessarily limited to cigarettes and alcohol. One must take

into account the risks that the above-mentioned legal substances cause annually. Statistically,

there is no evidence in existence that anyone has ever died of an overdose due to marijuana use.

In a typical year, tobacco kills about 390,000 people; alcohol about 80,000; secondhand tobacco

smoke about 50,000; cocaine about 2,200; heroin about 2,000; aspirin about 2,000; marijuana

kills 0; all illegal drugs combined about 4,500.52 This is not necessarily the fairest of arguments

because cocaine and heroin are both illegal reminiscent of marijuana; however, dismissing the

figures that accompany the two, what we are looking at is approximately 472,000 deaths

annually for substances that the government proposes as legal, and even safe (in the case of

aspirin). This, obviously in my opinion, is beyond ridiculous. While there may be room for

argument in whether or not marijuana truly results in zero deaths annually, one cannot

reasonably argue with the fact that prolonged alcohol and tobacco consumption result in death.

The question that remains, then, is why such harmful substances are deemed legal when

marijuana, which has potentially no actual health effects, remains illegal. I believe that the

answer lies in governmental greed that is met through taxation.

According to The Tax Foundation, as of July 1, 2009, the state of California is allowed to

tax the following items at the following rates: cigarettes (per pack), $0.87; spirits (per gallon),

$3.30; table wine (per gallon), $0.20; and beer (per gallon), $0.20.53 “A standard drink in the

United States is equal to 13.7 grams (0.6 ounces) of pure alcohol, or 12-ounces of beer; 8-ounces

52 Rosenthal, Ed, and Steve Kubby. Why Marijuana Should Be Legal. 1st ed. New York, NY: Thunder's Mouth Press, 1996. Print.

53 “State Sales, Gasoline, Cigarette, and Alcohol Taxes.” The Tax Foundation. 20 Oct 2009. Web. <http://www.taxfoundation.org/files/state_various_sales_rates-20091006.pdf>.

34

of malt liquor; 5-ounces of wine; or 1.5-ounces or a shot of 80-proof distilled spirits or liquor.54

Statistically, the average American consumes over 25 gallons of beer, 2 gallons of wine, and 1.5

gallons of distilled spirits such as vodka or whiskey annually. Calculated, this means that the

average Californian spends over $11 on just taxes – this by no means counts the actual cost of

purchasing the alcohol itself. While this may seem like a measly amount, one cannot forget how

quickly $11 can add up when calculated times millions. In addition, since these are statistics of

the average American alcohol consumption, it does not necessarily give an accurate rate of what

the average Californian consumes annually. Nonetheless, it gives a glimpse of the potential

taxation benefits that could arise from the legalization of marijuana.

Lastly, the argument that marijuana would cost billions of dollars and risk many

additional innocent lives remains somewhat unfounded. The increased law enforcement that the

government hires to “protect” society from the “ills” that marijuana use has on society is what

costs billions of dollars annually. It does not seem that the usage itself is neither the issue nor the

reason for why so many unnecessary expenditures are wasted each year, but rather, the

governmental need to keep the faith of the public. The government must gain the support from

the people, and in so doing, it must find some type of element to keep them under their wings. It

appears that the government continues to receive public recognition and support because there is

a fair amount of fear that has been instilled in the general public. Because we have fed into this

“fear” that the government has introduced to us, we are more willing to go along with steps that

appear to assuage our inhibitions that come along with criminalization. Currently, law

enforcement expenditures required to cover the newly implemented positions in California has

reached approximately in the millions. I have not reiterated a lot of facts because they have

54 “Alcohol and Public Health.” Centers for Disease Control and Prevention. 21 Oct 2009. Web. <http://www.cdc.gov/alcohol/faqs.htm>.

35

already been mentioned. However, another point to analyze in this argument is the potential risk

to millions of innocent lives. According to the California Office of Traffic Safety,

“In California, 1,616 people were killed in alcohol related crashes in 2007, down from 1,762 fatalities in 2006 – a decrease of 8.3 percent.  Additionally in 2007, there were 30,642 people injured in alcohol-related crashes, down from 31,099 in 2006. 

In California, 203,866 people were arrested for driving under the influence (DUI) in 2007, up from 197,248 in 2006.

The average alcohol-related fatality in California costs $3.8 million, including $1 million in monetary costs and $2.8 million in quality of life losses.

The estimated cost per injured survivor of an alcohol-related crash averages $115,000 including $55,000 in monetary costs and $60,000 in quality of life losses.

Alcohol-related crashes accounted for an estimated 20 percent of California’s auto insurance payments.  Reducing alcohol-related crashes by 10 percent could save $300 million in claims payments and loss adjustment expenses.”55

With these statistics in mind, it appears that the legal substance, alcohol costs us billions in

addition to risking thousands of innocent lives. McCaffrey obviously did not do his research as

thoroughly as he should have. While he may be correct in some form or another, his fight shows

that the government often misinforms the public so that they are led further into the culture of

fear.

Regardless of which side one finds themselves in favor of, there can be no denying that

while legalization may not be the most “moral” choice, it is the most beneficial, economical one.

From prior history, it is simple to see that continuing to criminalize something that a great

number will find through the black market is not the best alternative. Obviously, someone (in this

case drug dealers) will profit from the sale of marijuana whether it is legal or not. With all of the

combined benefits that legalization has to offer, it should be something that is seriously

55 “DUI Crackdown, Public Information. “California Office of Traffic Safety.” Web. 14 Nov 2009. <http://www.ots.ca.gov/Media_and_Research/Campaigns/DUI_Crackdown/Public_Information/DUI_Facts.asp>.

36

considered rather than frowned upon for mainly moralistic reasons. While there is no doubt that

legalization will have some costs, it appears that its benefits will far outweigh them in the long

run. It is therefore, extremely essential that we focus on issues that are similar such as alcohol

and cigarette abuse that are actually legal. These problems are causing more trouble than

marijuana, and yet they are legal without a question.

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