TAMM, Circuit Judge:
In this action, the National Organization for The Reform of Marijuana Laws (NORML or plaintiff) challenges the provisions of the Controlled Substances Act, 21 U.S.C. §§ 801-904 (1976) (CSA or Act), that prohibit the private possession and use of marijuana. Plaintiff asserts that the Act violates the Constitution's guarantees of privacy and equal protection and its prohibition against cruel and unusual punishment. Finding the Act to be a reasonable congressional attempt to deal with a difficult social problem, we must reject this challenge and leave NORML to seek redress through political channels.
I. The Litigation
NORML filed this action October 10, 1973,
II. The Controlled Substances Act
Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970 (DAPCA), 21 U.S.C. §§ 801-966 (1976), to fight this nation's growing drug problem. The act was designed to
H.R.Rep. No. 1444, 91st Cong., 2d Sess. 1 [hereinafter cited as 1970 House Report], reprinted in  U.S.Code Cong. & Admin.News, pp. 4566, 4567. It ended the patchwork federal effort against drug abuse and signaled a national commitment to deal with this problem by committing federal funds for rehabilitation programs.
In addition to the rehabilitation programs, DAPCA also revised completely the federal drug laws dealing with drug control.
Congress also has revamped the penalties for distribution or possession of controlled substances. Heavy penalties — up to fifteen years and a $25,000 fine — are authorized for violators who manufacture or distribute Schedule I or II narcotic
In setting the penalties, Congress sought to reduce drug abuse by deterring suppliers through stiff penalties for drug distribution. Section 848 of DAPCA contains a special minimum term of ten years and a possible fine of $100,000 for anyone convicted of engaging in a "continuing criminal enterprise" involving five or more people in a series of drug violations. Id. § 848.
Penalties for possession are not so severe. Possession of any controlled substance carries a maximum sentence of one year and a $5,000 fine, with no distinctions being drawn among drugs in different schedules. These penalties again double for a second offense. None of these penalties are mandatory, however, and this flexibility lets a judge impose a sentence that takes account of individual circumstances. In addition, a court may place first offenders on probation for one year; upon successful completion of probation, court proceedings are dismissed without an adjudication of guilt, and the conviction is not placed on the individual's
Marijuana (cannabis sativa L.) is a psychoactive drug made of the leaves, flowers, and stems of the Indian Hemp plant. It derives its psychoactive properties from delta-9-tetrahydrocannabinol (THC), which exists in varying concentrations in the plant, depending on its origin, growing conditions, and cultivation. Marijuana and Health: A Report to the Congress from the Secretary, Department of Health, Education, and Welfare 13-14 (1971) [hereinafter cited as 1971 HEW Report]. The concentration of THC within the sections of the plant also varies widely. The resin contains the greatest concentration of THC; smaller amounts are found, respectively, in the flowers, the leaves, and the stems. The most potent form of the drug, hashish, is prepared from the resins of the flowers and contains 5-12% THC. Marijuana generally found in the United States is weaker, with around 1% THC. National Commission on Marihuana and Drug Abuse, Marihuana: A Signal of Misunderstanding 50-51 (1972) [hereinafter cited as Signal of Misunderstanding].
The drug produces a number of physiological and psychological effects. The short-term physiological effects have been well documented. They are reddening of the whites of the eye, dryness in the mouth, increased pulse rate, and impaired motor responses.
Signal of Misunderstanding, supra at 56. The intensity of these reactions depends on dosage, method of use, metabolism, attitude and setting, tolerance, duration of use, and pattern of use. Id. at 50-53.
The long-term effects of marijuana are less well known. Studies have dispelled many of the myths about the drug: marijuana is not a narcotic, not addictive,
Despite these findings, questions about long-term use remain. Studies have indicated that marijuana may affect adversely the lungs and the endocrine, the immunity, and the cardiovascular systems. Some of these studies are disputed, see L. Grinspoon, supra at 376, but an examination of these adverse findings illustrates the important questions still remaining about marijuana use.
Smoking marijuana may contribute to lung disorders in the same way as tobacco. Marijuana smoke contains more tar than tobacco smoke, and the typical user inhales this smoke in his lungs and holds it there to derive the greatest effect from the THC. J. Graham, Cannabis and Health 283 (1976). The smoke irritates the lung tissue, and with heavy long-term use, may impair lung functions. 1976 HEW Report, supra at 14-15.
Marijuana may also affect the levels of the male sex hormone testosterone and other pituitary hormones. Several studies have found lower levels of testosterone after marijuana use. Even where lower testosterone levels were found, they were still within acceptable limits, 1976 HEW Report, supra at 15; L. Grinspoon, supra at 388-89, but the possibility of damage from long-term, heavy use still exists. Researchers are particularly concerned about marijuana's effects on pubertal males,
In a 1974 study, scientists found evidence that marijuana use impaired the functioning of the immunity system, causing a reduction in the white blood cell count. 1976 HEW Report, supra at 16. Later studies reached similar conclusions, 1975 HEW Report, supra at 110, while others have found no such reduction. More study of this question is needed, but conducting research in this and other areas involving physiological
Marijuana affects the cardiovascular system by accelerating the heart rate. Studies also indicate that it may weaken temporarily contractions of heart muscle, posing dangers for smokers with heart disease or abnormalities. 1976 HEW Report, supra at 14. Studies on healthy young men have revealed no cardiovascular effects, but those with heart problems may experience pain due to less efficient delivery of oxygen in the blood. 1975 HEW Report, supra at 80. The long-range consequences of these temporary changes in the cardiovascular system are difficult to assess, but they may be significant and require further study.
In addition to these problems, other tests have found negative aspects to marijuana use. Amotivational difficulties and changes in brain cells, chromosomes, and cell metabolism have been noted in various studies. 1976 HEW Report, supra at 16-20; 1975 HEW Report, supra at 82-83; Signal of Misunderstanding, supra at 61-65. These findings have not been corroborated, however, and other research has reached contradictory conclusions. See L. Grinspoon, supra at 54, 287-90, 387, 390-91. As with the other areas, these questions demand further scientific study to determine conclusively the long-term effects of marijuana. Although we now know that marijuana is not the "killer" drug, as branded in the past, its long-term effects are still an open question and must be approached as unresolved. These lingering questions must be kept in mind in considering the legal issues.
IV. Legal Issues
A. Right of Privacy
NORML first contends the prohibition on the private possession and use of marijuana violates the constitutional rights of privacy in one's home, see Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), and individual autonomy, see Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). These rights, being fundamental, receive the highest constitutional protection and must prevail over governmental restrictions unless the government can demonstrate "a compelling state interest," Kramer v. Union Free School District No. 15, 395 U.S. 621, 627, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969). In NORML's view, no rational basis exists for the marijuana prohibition, and therefore the statute must be declared invalid.
In weighing this claim, this court must examine the roots of this modern concept of privacy.
In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Court struck down state statutes prohibiting abortions in the early stages of pregnancy. Justice Blackmun, in his majority opinion, noted that "[t]he Constitution does not explicitly mention any right of privacy." Id. at 152, 93 S.Ct. at 726. Nonetheless, "the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy does exist under the Constitution." Id. On the question of abortion, the Court decided this privacy right was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy," id. at 153, 93 S.Ct. at 727.
This right of privacy is not absolute, however.
In Stanley v. Georgia, the Supreme Court based the right of privacy on the first amendment right to receive information and a right of privacy in the home. At issue in Stanley was the possession of obscene materials that fell outside first amendment protection under Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Nevertheless, the Court held that their possession in the home was protected.
394 U.S. at 564, 89 S.Ct. at 1247-48 (citation omitted).
The Court concluded:
Id. at 565, 89 S.Ct. at 1248.
The Supreme Court defined the contours of Stanley and this right of privacy in the home in four subsequent pornography decisions, United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973), United
NORML argues that this right of privacy in general and privacy in the home forbids any governmental ban on private possession and use of marijuana. Such a reading stretches the right of privacy too far. This right exists only in conjunction with specific constitutional guarantees that serve as the substantive basis for the privacy right, Paul v. Davis, 424 U.S. 693, 712-13, 96 S.Ct. 1155, 1165-66, 47 L.Ed.2d 405 (1976).
Smoking marijuana does not qualify as a fundamental right, Ravin v. State, 537 P.2d 494, 502 (Alaska 1975) (dictum).
Shapiro v. Thompson, 394 U.S. 618, 642, 89 S.Ct. 1322, 1335, 22 L.Ed.2d 600 (Stewart, J., concurring). Smoking marijuana receives no explicit or implicit constitutional protection. The act of smoking does not involve the important values inherent in questions concerning marriage, procreation, or child rearing. Moreover, its use predominantly as a "recreational drug"
NORML tries to bootstrap the Stanley right of privacy in the home into a fundamental right that protects all activities taking place therein. This reading reverses the proper analysis. The home offers refuge for activities grounded in other protected rights. The right protected in Stanley was the first amendment right to read and receive information even if the information itself was not constitutionally protected. Stanley v. Georgia, 394 U.S. at 564-66, 89 S.Ct. at 1247-48. Without that first amendment right at issue, Stanley would have no right to privacy in the home. The Court specifically stated:
Id. at 568 n.11, 89 S.Ct. at 1249-50 n.11.
B. Equal Protection
NORML further contends that the CSA violates the equal protection component of the due process clause.
Legislation that does not affect a "fundamental"
McDonald v. Board of Election Commissioners, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969). This standard of judicial review gives legislatures wide discretion and permits them to attack problems in any rational manner. Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). "In an equal protection case of this type . . ., those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker." Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 950, 59 L.Ed.2d 171 (1979). The classification will be upheld unless "the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [a court] can only conclude that the legislature's actions were irrational." Id. at 97, 99 S.Ct. at 943. "In short, the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed
1. Classification as a Controlled Substance
The inclusion of marijuana as a controlled substance under the CSA easily satisfies this deferential rationality standard. Congress gave the CSA provisions concerning marijuana considerable attention. It recognized that much of the information regarding marijuana was inaccurate
The record, however, is not so clear as NORML contends. Experts still strongly disagree about the safety of marijuana, and its long-term effects remain an open question. Studies indicate that marijuana may impair the circulatory, the endocrine, and the immunity systems of the body, alter chromosomes, and change cell metabolism.
Given the continuing debate over marijuana, this court must defer to the legislature's judgments on disputed factual issues. In the Carolene Products decision on which NORML relies, the Supreme Court recognized the importance of this policy of judicial restraint:
304 U.S. at 154, 58 S.Ct. at 784-85. The classification need not change continually as more information becomes available. Congressional action must be upheld as long as a rational basis still exists for the classification. The continuing questions about marijuana and its effects make the classification rational.
2. Classification in Schedule I
In a related equal protection challenge, NORML argues that classification of marijuana in Schedule I is irrational as being both underinclusive and overinclusive. The CSA does not regulate alcohol and tobacco, which are more harmful than marijuana, and it places marijuana in the same schedule with such dangerous substances as heroin and other narcotics. Thus, even if the classification of marijuana as a controlled substance is rational, the plaintiff believes that the legislation nonetheless is unconstitutional because marijuana's treatment within the Act is irrational in relation to other controlled substances.
"Underinclusive classifications do not include all who are similarly situated with respect to a rule, and thereby burden less than would be logical to achieve the intended government end." L. Tribe, American Constitutional Law, § 16-4, at 997 (1978). To be successful in a challenge based on underinclusiveness, plaintiff must show that the governmental choice is "`clearly wrong, a display of arbitrary power, not an exercise of judgment,'" Mathews v. de Castro, 429 U.S. 181, 185, 97 S.Ct. 431, 434, 50 L.Ed.2d 389 (1976) (quoting Helvering v. Davis, 301 U.S. 619, 640, 57 S.Ct. 904, 908, 81 L.Ed. 1307 (1937)). Few challengers can sustain such a heavy burden of proof. Courts have recognized the very real difficulties under which legislatures operate — difficulties that arise due to the nature of the legislative process and the society that legislation attempts to reshape. As Professor Tribe has explained: "underinclusive" or "piecemeal legislation is a pragmatic means of effecting needed reforms, where a demand for completeness may lead to total paralysis . . . ." L. Tribe, supra § 16-4, at 997.
Legislatures have wide discretion in attacking social ills. "A State may `direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are allowed.'" Hughes v. Superior Court, 339 U.S. 460, 468, 70 S.Ct. 718, 723, 94 L.Ed. 985 (1950) (quoting Central Lumber Co. v. South Dakota, 226 U.S. 157, 160, 33 S.Ct. 66, 67, 57 L.Ed. 164 (1912)). Failure to address a certain problem in an otherwise comprehensive legislative scheme is not fatal to the legislative plan.
McDonald v. Board of Election Commissioners, 394 U.S. at 809, 89 S.Ct. at 1409.
Given this policy of legislative freedom in confronting social problems, the exclusion of alcohol and tobacco from the CSA does not render the scheme unconstitutional. Different legislative schemes control the sale and distribution of alcohol and tobacco, see, e. g., 26 U.S.C. §§ 5661(b), 5681, 5683, 5686 (1976). The specific exemption of alcohol and tobacco from the provisions of the CSA, 21 U.S.C. § 802(6) (1976), reflects Congress's view that other regulatory schemes are more appropriate for alcohol and tobacco.
A law also may be challenged for including within a prohibited class an item that does not rationally belong with the other members of that class. NORML once again draws its support from the Carolene Products decision:
United States v. Carolene Products Co., 304 U.S. at 153-54, 58 S.Ct. at 784. The plaintiff here argues that penalties for possession of marijuana should be lower than those authorized for other, more dangerous Schedule I drugs. Moreover, NORML contends marijuana's classification in Schedule I is impermissible because the drug does not fit the statutory criteria for placement in that schedule.
The "rational basis" test governs this challenge to the relative severity of penalties under the CSA. See Duffy v. Wells, 201 F.2d 503, 506 (9th Cir. 1952), cert. denied, 346 U.S. 861, 74 S.Ct. 74, 98 L.Ed. 373 (1953). Under this analysis, the penalty scheme is not irrational.
As noted above, lingering uncertainties about the effects of marijuana still exist, and Congress reasonably resolved these questions by penalizing its possession. Furthermore, Congress was aware of the differing views on marijuana control
2) Classification in Schedule I
NORML argues that marijuana does not belong in Schedule I, for it does not satisfy that schedule's statutory criteria — high potential for abuse, no medically accepted use, and no safe use of the drug even under medical supervision. 21 U.S.C.
Even assuming, arguendo, that marijuana does not fall within a literal reading of Schedule I, the classification still is rational.
Id. at 749 n. 4.
The legislative history also indicates the statutory criteria are not intended to be exclusive. The House report states that "[a]side from the criterion of actual or relative potential for abuse, subsection (c) of section 201 [21 U.S.C. § 811(c)] lists seven other criteria . . . which must be considered in determining whether a substance meets the specific requirements specified in section 202(b) [21 U.S.C. § 812(b)] for inclusion in particular schedules . . .." 1970 House Report, supra at 35, reprinted in  U.S.Code Cong. & Admin.News at
In addition, Congress itself made the initial classifications, 21 U.S.C. § 812(c), and established a procedure for reclassifying drugs and controlled substances: "Schedules I, II, III, IV, and V shall, unless and until amended pursuant to section 811 of this title [21 U.S.C. § 811], consist of the following drugs and other substances . . .." 21 U.S.C. § 812(c) (emphasis added). In making the initial determination, Congress placed marijuana in Schedule I. The clear meaning of section 812(c) is that Congress intended marijuana to remain in Schedule I until such time as it might be reclassified by the Attorney General on the basis of more complete scientific information about the drug. In such a reclassification hearing, the statutory criteria would be the guides to determining the most appropriate schedule for marijuana. By providing for periodic review and constant revision of drug classifications, Congress enacted a sensible mechanism for scrutinizing the classification of marijuana. As Judge Feinberg stated in United States v. Kiffer:
477 F.2d 349 at 357.
The legislative scheme under section 811 offers a flexible means of reclassifying controlled substances, and the Attorney General may reclassify marijuana pursuant to that scheme.
c. Cruel and Unusual Punishment
Finally, NORML argues that the penalties under the CSA for marijuana possession violate the eighth amendment's ban on cruel and unusual punishment. The plaintiff contends that a one-year sentence and $5,000 fine are so disproportionate to the nature of the offense that they must be overturned. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910).
The Supreme Court has established a framework for examining challenges to the severity of a criminal statute. See Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977) (plurality opinion of White, J.); Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (plurality opinion of Stewart, J.); Robinson v. California; Weems v. United States. A court must compare the severity of the offense being punished and its sentence with the punishment imposed for other crimes in the jurisdiction and for the same crime in other jurisdictions. In evaluating these factors, a court must consider "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 596 (1958) (plurality opinion). "Furthermore, these Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual [judges]; judgment should be informed by objective factors to the maximum possible extent." Coker v. Georgia, 433 U.S. at 592, 97 S.Ct. at 2866. This objective analysis is designed to prevent unwarranted judicial interference with legislative prerogatives. As Justice Stewart stated in Gregg:
Gregg v. Georgia, 428 U.S. at 175-76, 96 S.Ct. at 2926 (plurality opinion) (citations omitted).
Judged by these standards, the penalties for possession of marijuana do not violate the eighth amendment. Private possession is not a major offense under the CSA; a first offense is only a misdemeanor. The penalty of one year is not excessive compared to other possessory federal crimes,
V. Final Considerations
In this case, NORML has asked this court to overturn the CSA prohibition on private possession of marijuana. In so doing, NORML misdirects its efforts. This challenge presents the difficult social questions that legislatures are especially adept at resolving, and we do not sit to second-guess their judgments.
Baker v. Carr, 369 U.S. 186, 270, 82 S.Ct. 691, 739, 7 L.Ed.2d 663 (1962) (Frankfurter, J., dissenting).
NORML's efforts have seared the conscience of many representatives. Eleven states have decriminalized possession of marijuana,
21 U.S.C. § 812(b).
21 U.S.C. § 802(16).
Under this definition, marijuana is not a narcotic. Cf. D.C.Code 33-401(m) (1973) (including cannabis within the legal definition of narcotic).
This right of personal autonomy and the general right of privacy are closely related, and they will be discussed under the broader framework of the right of privacy.
Griswold v. Connecticut, 381 U.S. at 484, 85 S.Ct. at 1681.
Id. at 178 n. 15, 96 S.Ct. at 2598 n. 15.
Id. at 502. This admission in Ravin that private use of marijuana is not a fundamental right and the special reliance on the Alaska Constitution do not support NORML's position.
FABLE FACT 1. Marihuana is a narcotic. 1. Marihuana is not a narcotic except by statute. Narcotics are opium or its derivations (like some synthetic chemicals with opium-like activity). 2. Marihuana is addictive. 2. Marihuana does not cause physical addiction, since tolerance to its effects and symptoms on sudden withdrawals does not occur. It can produce habituation (psychological dependence). 3. Marihuana causes violence 3. Persons under the influence and crime. of marihuana tend to be passive. It is true that sometimes a crime may be committed by a person while under the influence of marihuana. However, any drug which loosens one's self-control is likely to do the same and relates primarily to the personality of the user. 4. Marihuana leads to increase 4. Marihuana has no in sexual activity. aphrodisiac property. 5. Marihuana is harmless. 5. Instances, of acute panic, depression, and psychotic states are known, although they are infrequent. Certain kinds of individuals can also become over-involved in marihuana use and can lose their drive. We do not know the effects of long-term use. 6. Occasional use of marihuana 6. We do not know. is less harmful than Research on the effects of occasional use of alcohol. various amounts of each drug for various periods is underway. 7. Marihuana use leads to 7. We know of nothing heroin. in the nature of marihuana that predisposes to heroin abuse. It is estimated that less than 5% of chronic users of marihuana go on to heroin use. 8. Marihuana enhances 8. Marihuana might creativity. bring
fantasiesof enhanced creativity but they are illusory, as are "instant insights" reported by marihuana users. 9. More severe penalties 9. Marihuana use has will solve the marihuana increased enormously in problem. spite of the most severely punitive laws. 10. It is safe to drive while 10. Driving under the under the influence of marihuana. influence of any intoxicant is hazardous.
1970 House Report, supra note 4, at 12-13, reprinted in  U.S.Code Cong. & Admin. News at 4577-78.
Letter from Dr. Roger O. Egeberg, Assistant Sec'y for Health and Scientific Affairs, Dep't of HEW, to Hon. Harley O. Staggers, Chairman, House Comm. on Interstate and Foreign Commerce, reprinted in 1970 House Report, supra note 4, at 61;  U.S.Code Cong. & Admin. News at 4629-30.
In an effort to secure more information about marijuana, Congress, in section 601 of DAPCA, established the Commission on Marihuana and Drug Abuse to study marijuana use and its effects. The Commission, headed by Governor Raymond P. Shafer, issued its report, Marihuana: A Signal of Misunderstanding, in 1972. The Commission recommended that federal and state penalties for private possession of marijuana be eliminated and that governmental efforts should focus on discouraging marijuana use. Signal of Misunderstanding 134-38, 151-60.
116 Cong.Rec. 1648 (1970) (statement of Sen. Hughes). Senator Dodd, the sponsor of S. 3246, disagreed. He believed the problems raised by marijuana use were very real:
Id. at 1653 (statement of Sen. Dodd). Senator Dodd's view prevailed, and the amendment was rejected.
116 Cong.Rec. 36882 (1970). Other members of Congress indicated the two criteria were equally important. "The categorizations are based on [the] `drug's potential for abuse and nonmedical use.'" 116 Cong.Rec. 33658 (1970) (statement of Rep. Cohelan).
21 U.S.C. § 811(c) (1976).
Select Comm. on Narcotics Abuse and Control, 95th Cong., 1st Sess., Considerations For and Against the Reduction of Federal Penalties For Possession of Small Amounts of Marihuana For Personal Use 7 (Comm. Print 1977). Dr. Grinspoon, of course, is correct. Responsibility for these decisions, however, rests with Congress, and it has made its choice in enacting the CSA.