NAT. ORG. FOR REFORM OF MARIJUANA LAWS v. BELL

OPINION

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, 1973,1 seeking a declaratory judgment that the CSA and District of Columbia Uniform Narcotic Drug Act, D.C.Code §§ 33-401 to 425 (1973), are unconstitutional in prohibiting the private possession and use of marijuana and requesting a permanent injunction enjoining enforcement of those statutes.2 This court stayed the proceedings for a year while NORML tried to obtain administrative relief through a proceeding to reclassify marijuana.3 After the stay was vacated, the parties battled over preliminary motions for two years. Finally, in June 1978, this court heard five days of evidentiary hearings before Judge Aubrey Robinson. Both sides presented live and documentary evidence concerning the effects of marijuana. Shortly thereafter, the parties submitted proposed findings of fact on the effects of marijuana and legal arguments for the court's consideration.

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 [1970] 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.4

In addition to the rehabilitation programs, DAPCA also revised completely the federal drug laws dealing with drug control.5 Title II, called the Controlled Substances Act (CSA), establishes five schedules for classifying controlled substances according to specified criteria.6 Two criteria — the potential for abuse and the medical applications of a drug — are the major bases for classification,7 along with certain social and medical information. 21 U.S.C. §§ 811(c), 812(b).8 Congress, on the basis of information gathered from extensive hearings,9 made the initial classifications. Recognizing that scientific information concerning controlled substances would change, Congress empowered the Attorney General to hear petitions for the reclassification or removal of drugs from the schedules. Id. § 811.10

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 narcotic11 drugs. 21 U.S.C. § 841(b)(1)(A). The manufacture or distribution of a nonnarcotic Schedule I or II substance, or a Schedule III drug, carries a possible five year and $15,000 penalty. Id. § 841(b)(1)(B). The penalties for violations involving Schedules IV and V are correspondingly lower. Penalties double for second offenses.

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. § 848.12 These heavier penalties for distribution, combined with strict registration requirements for manufacturers and researchers of Schedule I and II substances, id. §§ 821-29, are designed to reduce trafficking in dangerous drugs.

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 record. Id. § 844(b)(1). A special provision places those dealing in a small amount of marijuana for no compensation under the possession penalties; thus, someone giving small amounts to friends is not subject to the stiff penalties for distribution. Id. § 841(b)(4).

III. Marijuana

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.13 Marihuana and Health: Fifth Annual Report to the U.S. Congress from the Secretary of Health, Education, and Welfare 84 (1975) [hereinafter cited as 1975 HEW Report]; 1971 HEW Report, supra at 57-58. The short-term psychological effects are equally well known:

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 50-53.14

Experiences under marijuana intoxication are usually pleasurable, but negative reactions are not infrequent. See id. at 56. These negative reactions include distortion of body image, depersonalization, acute panic anxiety reaction, nausea, and, more rarely, psychosis. Marihuana and Health: Sixth Annual Report to the U.S. Congress from the Secretary of Health, Education, and Welfare 22-23 (1976) [hereinafter cited as 1976 HEW Report]; 1975 HEW Report, supra at 86-87; 1971 HEW Report, supra at 57. These reactions may be caused or exaggerated by pre-existing psychological problems. See 1976 HEW Report, supra at 21-22.

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,15 and generally not a stepping-stone to other, more serious drugs.16 Furthermore, it causes neither aggressive behavior nor insanity. L. Grinspoon, Marijuana Reconsidered 230-322 (2d ed. 1977).

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,17 males with impaired sexual functioning, and pregnant women. 1975 HEW Report, supra at 81-82.

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 changes from marijuana is extremely difficult, for researchers cannot even agree on appropriate procedures. See L. Grinspoon, supra at 389.

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.18 The Supreme Court first discussed privacy as a constitutional right in Griswold v. Connecticut. In that case, the Court struck down a Connecticut statute prohibiting the use of contraceptives by married couples. Justice Douglas, in his opinion for the Court, stated that a right of privacy exists in the "penumbras" of the Bill of Rights,19 381 U.S. at 484, 85 S.Ct. at 1681, and that marriage falls "within the zone of privacy created by several fundamental constitutional guarantees," id. at 485, 85 S.Ct. at 1682. The Court, however, gave no indication as to the extent of this marital right 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.20 Justice Blackmun made clear that this right includes only those "personal rights that can be deemed `fundamental' or `implicit in the concept of ordered liberty . . ..'" Id. at 152, 93 S.Ct. at 726 (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937)). The Court expressly has recognized as fundamental those rights regarding familial concerns and obligations: marriage, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); contraception, Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); child rearing, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); procreation, Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); familial living arrangements, Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion).

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 States v. 12 200-ft. Reels of Super 8mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), and United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971). In these cases, the Court declined to expand this concept of privacy; instead it construed the right strictly to apply only to the home. The Court refused to find any concurrent right to transport obscene materials across state lines for personal use, United States v. Orito, 413 U.S. at 142-43, 93 S.Ct. at 2677, to import obscene items for personal use, United States v. 12 200-ft. Reels of Super 8mm. Film, 413 U.S. at 128, 93 S.Ct. at 2668, or to distribute obscene materials, United States v. Reidel, 402 U.S. at 356, 91 S.Ct. at 1412. According to the Court, the right of "`privacy of the home' . . . was hardly more than a reaffirmation that `a man's home is his castle,'" Paris Adult Theatre I v. Slaton, 413 U.S. at 66, 93 S.Ct. at 2640. As such, it receives "special safeguards," United States v. Orito, 413 U.S. at 142, 93 S.Ct. at 2677, but the protection "is restricted to a place, the home." Paris Adult Theatre I v. Slaton, 413 U.S. at 66 n.13, 93 S.Ct. at 2640 n.13.

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).21 The recognized substantive rights are "`fundamental' or `implicit in the concept of ordered liberty,'" id. at 713, 96 S.Ct. at 1166 (citation omitted), and "[t]he activities detailed as being within this definition . . . relat[e] to marriage, procreation, contraception, family relationships, and child rearing and education." Id.22

Smoking marijuana does not qualify as a fundamental right, Ravin v. State, 537 P.2d 494, 502 (Alaska 1975) (dictum).23 In ascertaining whether a right is fundamental, a court must determine whether the right is "explicitly or implicitly guaranteed by the Constitution." San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 33-34, 93 S.Ct. 1278-1297, 36 L.Ed.2d 16 (1973). On this issue, Justice Stewart once noted:

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"24 undercuts any argument that its use is as important as, e.g., use of contraceptives, see Eisenstadt v. Baird, discussed at p. 131 supra.25 As the Alaska Supreme Court noted in discussing a right to private use of marijuana, "[f]ew would believe they have been deprived of something of critical importance if deprived of marijuana." Ravin v. State, 537 P.2d at 502. Private possession of marijuana, not being what Justice Stewart called an "established constitutional right," cannot be deemed "fundamental."26

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.11.27 Finding no fundamental right to private use and possession of marijuana, this court must reject NORML's privacy claim.28

B. Equal Protection

NORML further contends that the CSA violates the equal protection component of the due process clause.29 First, it argues that the classification of marijuana, a relatively harmless drug, as a controlled substance violates equal protection. Second, NORML believes that, even if marijuana may be controlled, its classification as a Schedule I drug is infirm: placement in Schedule I is both underinclusive in failing to include as a controlled substance drugs such as alcohol and nicotine, which satisfy Schedule I criteria, and overinclusive for establishing the same penalties for possession of marijuana as for all other controlled substances and for including marijuana in Schedule I with the more dangerous narcotics and opiates. For the reasons stated below, this court rejects these contentions.

Legislation that does not affect a "fundamental"30 right or a "suspect" class need only bear a rational relationship to a legitimate state interest.

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 along suspect lines . . .." New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976).

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 inaccurate31 and that bias and ignorance had perpetuated many myths about the consequences and dangers of marijuana use. Despite all the concern over the drug, few reliable scientific studies existed that could give accurate information to the legislators. Representative Cohelan acknowledged this lack of accurate information on marijuana during the House discussion of the bill: "Much remains to be done to find out the effects of marijuana. Assertions from both sides are not hard to find, but there is precious little hard clinical data on this subject." 116 Cong. Rec. 33658 (1970). Unsure of marijuana's effects, Congress placed marijuana in Schedule I, with its program of strict controls, until it could obtain more scientific information on the drug's effects. In so doing, Congress followed the recommendation of the Department of Health, Education, and Welfare, which had suggested classification in Schedule I until further tests could be completed.32

Inclusion of marijuana as a controlled substance in 1970 certainly was rational. The information then available indicated that marijuana might well have substantial detrimental effects,33 and Congress thus reasonably could decide to include the drug as a controlled substance rather than leave it unregulated. NORML argues that, although classification of marijuana as a controlled substance in 1970 might have been rational, the scientific evidence available today establishes that "private possession and use of marijuana by adults [do] not pose any significant danger to the public health, safety or welfare." Brief for Plaintiff at 18. NORML therefore asserts the classification of marijuana as a controlled substance is no longer rational and invokes United States v. Carolene Products Co., 304 U.S. 144, 153, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938): "the constitutionality of a statute predicated upon a particular state of facts may be challenged by a showing to the court that those facts have ceased to exist." (citation omitted). See also Abie State Bank v. Bryan, 282 U.S. 765, 51 S.Ct. 252, 75 L.Ed. 690 (1931).

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.34 Although many dispute these findings, this contradictory evidence demonstrates that important questions about marijuana use persist.

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.

Furthermore, judicial deference is appropriate when difficult social, political, and medical issues are involved. Courts should not step in when legislators have made policy choices among conflicting alternatives. That this court might resolve the issues differently is immaterial. "When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation, even assuming, arguendo, that judges with more direct exposure to the problem might make wiser choices." Marshall v. United States, 414 U.S. 417, 427, 94 S.Ct. 700, 706, 38 L.Ed.2d 618 (1974). Thus, this court should not substitute its judgment for the reasonable determination made by Congress to include marijuana under the CSA.35

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.

a. Underinclusiveness

"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.36 That alcohol and tobacco may have adverse effects on health does not mean the CSA is the only proper means of regulating these drugs, nor does it mean that marijuana should be treated identically. As a Presidential commission on drug abuse pointed out, "While alcoholism constitutes a major social problem, surely it is not valid to justify the adoption of a new abuse on the basis that it is no worse than a presently existing one. The result could only be added social damage from a new source." Task Force Report: Narcotics, Marijuana, and Dangerous Drugs (1969), reprinted in 115 Cong.Rec. 25454, 25456 (1969). Congress, having the power to deal with drug abuse in any reasonable manner, decided to exclude alcohol and tobacco from the CSA. This court will not disturb that judgment.

b. Overinclusiveness

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.

1) Penalties

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.37 Congress, in establishing the same penalty for all possessory offenses involving controlled substances, has chosen to concentrate on distribution and not possession of drugs. The CSA provides stiff penalties for sale or distribution according to the schedule classifications, while simple possessory offenses are misdemeanors. When deciding on penalties, Congress need not consider only the potential harm from a drug; it also may consider the magnitude of the social problem, the deterrent effect of a particular penalty, and any special regulatory problems involved with a penalty scheme. See Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405 (1958). In determining penalties, the legal classification of a drug does not have to match its medical classification, see United States v. Brookins, 383 F.Supp. 1212, 1214-15 (D.N.J.1974) (different legal and medical classification of cocaine permitted), aff'd mem., 524 F.2d 1404 (3d Cir. 1975), for Congress may consider other issues not involving a drug's medical properties. In addition, the penalties do not need to be graduated according to the potential harm of the drug. On this point, the Supreme Court has stated: "[T]he Due Process Clause of the Fourteenth Amendment does not, nor does anything in the Constitution, require a State to fix or impose any particular penalty for any crime it may define or to impose the same or `proportionate' sentences for separate or independent crimes." Williams v. Oklahoma, 358 U.S. 576, 586, 79 S.Ct. 421, 427, 3 L.Ed.2d 516 (1959). See also Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 60, 82 L.Ed. 43 (1937).

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 control38 when it classified the drug and set penalties for possession and distribution. Indeed, marijuana received special consideration: lower penalties were set for distribution of small amounts of the drug for no compensation. 21 U.S.C. § 841(b)(4). Congress nonetheless rejected attempts to provide lower penalties for marijuana possession, fearing that such action would create the impression that marijuana use was acceptable. See 116 Cong.Rec. 1653 (1970) (statement of Sen. Dodd). These actions all indicate that Congress rationally dealt with the problem of penalties and sentencing in passing the CSA; NORML's contention that the marijuana penalties are too severe must be rejected.

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. § 812(b)(1) (1976). The Government disagrees and contends that all three criteria are met. It claims the drug has a "high potential for abuse," see 1970 House Report, supra at 34-35, reprinted in [1970] U.S.Code Cong. & Admin.News at pp. 4601-02, in that millions of Americans use marijuana on their own initiative rather than on the basis of medical advice. While tests have indicated that marijuana may have therapeutic uses in the treatment of glaucoma and cancer, 1976 HEW Report, supra at 25, the Food and Drug Administration does not currently accept it for any form of medical treatment. See 44 Fed.Reg. 36123, 36126 (1979). Finally, the Government claims that marijuana cannot be used safely due to the differing concentrations of THC in cannabis. Id.; see page 128 supra.

Even assuming, arguendo, that marijuana does not fall within a literal reading of Schedule I, the classification still is rational.39 Placing marijuana in Schedule I furthered the regulatory purposes of Congress. The statutory criteria of section 812(b)(1) are guides in determining the schedule to which a drug belongs, but they are not dispositive. Indeed, the classifications at times cannot be followed consistently, and some conflict exists as to the main factor in classifying a drug — potential for abuse or possible medical use.40 The district court in United States v. Maiden, 355 F.Supp. 743 (D.Conn.1973), discussed this problem in rejecting the identical claim raised here by NORML:

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 [1970] U.S.Code Cong. & Admin.News at 4602. The criteria listed in section 811(c)41 include the state of current knowledge, the current pattern of abuse, the risk to public health, and the significance of abuse. These more subjective factors significantly broaden the scope of issues to be considered in classifying a drug. Given these other concerns, Congress might well want marijuana in Schedule I for regulatory purposes. Such a classification carries heavier penalties for sale, distribution, and importation, thus aiding law enforcement officials in their effort to reduce the supply of marijuana.

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.42 The propriety of any administrative determination on the reclassification of marijuana is not before this court.43 The constitutional legitimacy of the classification of marijuana in Schedule I is challenged, however, and this court concludes that the classification is constitutionally permissible. Thus, plaintiff's equal protection challenge must be rejected.44

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).45 This argument must be rejected.

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,46 and the penalty falls within the middle of various state penalties for possession.47 In addition, judges are given discretion under the CSA to suspend a sentence or to give a year's probation. These penalties cannot be deemed cruel and unusual.

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.48 Under our system of checks and balances, it is the court's duty to examine legislation and to determine the legality or illegality of that legislation within the confines of the law. It is the responsibility of the court "to construe and enforce the Constitution and laws of the land as they are and not to legislate social policy on the basis of ... personal inclinations" or other nonlegal considerations. Evans v. Abney, 396 U.S. 435, 447, 90 S.Ct. 628, 635, 24 L.Ed.2d 634 (1970). See also New Orleans v. Duke, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976); Marshall v. United States, 414 U.S. 417, 427, 94 S.Ct. 700, 706, 38 L.Ed.2d 618 (1974). The legislative system may not always work efficiently, or fairly, but we have staked our fortunes on it, and our history would support the wisdom of our forefathers' judgment. As Justice Frankfurter once noted:

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,49 and efforts to decriminalize are continuing in many others. The legislative branch, and not the judicial, is the proper battleground for the fight to decriminalize the possession of marijuana. The people, and not the courts, must decide whether the battle will be won or lost.