Criminal Justice: Marijuana Before the Bench

The social value of discouraging crimes against others is clear; as a result, there is little resistance to laws that prohibit murder, robbery or rape.

The social value of deterring crimes against oneself is more debatable — especially when there is no proof that the outlawed conduct causes harm. Most lawyers agree, therefore, that laws prohibiting private acts such as drinking are an unnecessary and unwarranted restraint on individual freedom, and little more than an attempt to legislate morality. Now that argument—and others —is being used in a major attack on federal and state laws against marijuana.

In Oregon, a pharmacy board has just completed hearings on whether to recommend exemption of marijuana from the state narcotics law, and will deliver a decision next month. In Rhode Island, testimony pro and con has been heard on the constitutionality of the state marijuana restrictions in the trial of three students for selling pot; a decision is due shortly. New York State is preparing to try Literary Critic Leslie Fiedler and his wife next week for maintaining premises where marijuana was used. In Michigan, a bill designed to make marijuana lawful was introduced at the last session of the legislature and is awaiting consideration.

Even Death. Last week the most publicized test case so far got under way at a pretrial hearing in Massachusetts. Mounting the attack was an outspoken, cigar-chewing attorney named Joseph Oteri. A 36-year-old ex-Marine captain who currently serves as counsel for the National Association of Police Officers, Oteri is not the sort usually expected to be behind such causes, but the marijuana law "gripes me," he explains. "The hazards of marijuana are a myth." As a means of proving it, he took on the defense of Ivan Weiss and Joseph Leis, two college dropouts charged with possession of marijuana with intent to sell it. In court last week, Oteri could not get their names straight. But otherwise, he gave them a painstakingly prepared defense—the product of six months of research.

The first marijuana law in the U.S. was passed by Congress in 1937. Use of the hallucinogen was then centered in New Orleans, and little was known about it. Scare stories about marijuana leading to a crime wave prompted Congress to provide stiff penalties: up to five years for any pot offense. Now the maximum is 40 years. No probation is allowed for second offenders and a minimum sentence of five years is mandatory. In most states, no difference was seen between pot and such other drugs as heroin and opium; all were usually lumped under the same general narcotic law with the result that in Georgia, to take the most extreme example, selling marijuana to minors can bring the death penalty.