NORML v Bell

 http://www.druglibrary.org/Schaffer/legal/l1980/bell.htm

488 F. Supp. 123 (1980)

The NATIONAL ORGANIZATION FOR
The REFORM OF MARIJUANA LAWS
(NORML), et al., Plaintiffs,
v.
Griffin B. BELL, et al., Defendants.
Civ. A. No. 1897-73.
United States District Court,
District of Columbia.
Feb. 11, 1980.

Organization brought action challenging provisions of the Controlled Substances Act prohibiting the private possession and use of marijuana. The Three-Judge District Court, Tamm, Circuit Judge, held that: (1) the prohibition of the private possession and use of marijuana did not violate the constitutional right of privacy in one's home, since smoking marijuana does not qualify as a fundamental right; (2) the exclusion of alcohol and tobacco from the Controlled Substances Act does not render the Act unconstitutional; (3) even assuming that marijuana does not fall within a literal reading of the statutory criteria for Schedule I substances under the Controlled Substances Act, the classification of marijuana under Schedule I was rational, since placing marijuana in Schedule I furthered the regulatory purposes of Congress, and since the statutory criteria are guides in determining the schedule to which a drug belongs, but they are not dispositive; and (4) statutory-penalties of one-year imprisonment and $5,000 fine for possession of marijuana did not violate the Eighth Amendment's ban on cruel and unusual punishment. Order accordingly.

1. Constitutional Law ®=82(7) The right of privacy exists only in conjunction with specific constitutional guarantees that serve as substantive bases for the privacy rights.

2. Constitutional Law ®=82(1) In ascertaining whether a right is fundamental, court must determine whether the right is explicitly or implicitly guaranteed by the Constitution.

3. Constitutional Law e=82(7) The prohibition of the private possession and use of marijuana did not violate the constitutional right of privacy in one's home, since smoking marijuana does not qualify as a fundamental right.

4. Constitutional Law 253.2(2) The due process clause of the Fifth Amendment requires that federal legislation satisfy the same standards of equal protection of law that are guaranteed by the Fourteenth Amendment. U.S.C.A. Const. Amends. 5. 14.

5. Constitutional Law «=213.1(2) Legislation that does not affect a "fundamental" right or a "suspect" class need only bear a rational relationship to legitimate state interest, and such standard of judicial review gives legislature wide discretion and permits them to attack problems in any rational manner. U.S.C.A.Const. Amends. 5, 14.

6. Constitutional Law <s=213.1(2) Classification which does not affect fundamental right or a suspect class 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 court can only conclude that legislature's actions were irrational. U.S.C.A.Const. Amends. 5, 14.

7. Constitutional Law «= 250.1(2) Drugs and Narcotics ®=43 The inclusion of marijuana as a controlled substance under the Controlled Substances Act is rational and does not violate equal protection, in view of the continuing debate as to whether marijuana has substantial detrimental effect. Comprehensive Drug Abuse Prevention and Control Act of 1970, §§ 101-1016 as amended 21 U.S.C.A. §§ 801-966; U.S.C.A.Const. Amends. 5, 14.

8. Constitutional Law e= 211(2) To be successful in an equal protection challenge based on underinclusiveness, plaintiff must show that governmental choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. U.S.C.A.Const. Amends. 5, 14.

9. Constitutional Law ®=211(2) Failure to address a certain problem in an otherwise comprehensive legislative scheme is not fatal to the legislative plan. U.S.C.A.Const. Amends. 5, 14.

10. Drugs and Narcotics <s=250.3(l) The exclusion of alcohol and tobacco from the Controlled Substances Act does not render the Act unconstitutional. Comprehensive Drug Abuse Prevention and Control Act of 1970, §§ 101-1016 as amended 21 U.S.C.A. §§ 801-966; U.S.C.A.Const. Amends. 5, 14.

11. Constitutional Law <s=250.3(l) The "rational basis" test governs a challenge to the relative severity of penalties under the Controlled Substances Act. Comprehensive Drug Abuse Prevention and Control Act of 1970, §§ 101-1016 as amended 21 U.S.C.A. §§ 801-966; U.S.C.A.Const. Amends. 5, 14.

12. Drugs and Narcotics e=133 When deciding on penalties, Congress need not consider only the potential harm from a drug; it may also consider the magnitude of social problems, the deterrent effect of a particular penalty, and any special regulatory problems involved with a penalty scheme.

13. Drugs and Narcotics e=133 When deciding on penalties, Congress need not consider only the potential harm from a drug; it may also consider the magnitude of social problems, the deterrent effect of a particular penalty, and any special regulatory problems involved with a penalty scheme.

14. Constitutional Law
In enacting the Controlled Substances Act, Congress did not act irrationally when it established the same penalties for possession of marijuana as for possessory offenses involving other controlled substances. Comprehensive Drug Abuse Prevention and Control Act of 1970, §§ 101-1016 as amended 21 U.S.C.A. §§ 801-966; U.S.C.A.Const. Amends. 5, 14.

15. Drugs and Narcotics ®=43 Even assuming that marijuana does not fall within a literal reading of the statutory criteria for Schedule I substances under the Controlled Substances Act, the clas-sification of marijuana under Schedule I jwas rational, since placing marijuana in Schedule I furthered the regulator)' purposes of Congress, and since the statutory criteria are guides in determining the schedule to which a drug belongs, but they are not dispositive. Comprehensive Drug Abuse Prevention and Control Act of 1970, §§ 101-709, 202(b)(l) as amended 21 U.S. C.A. §§ 801-904, 812(b)(l); U.S.C.A.Const. ^Amends. 5, 14.

16. Constitutional Law ®=47 In ruling on a challenge to the severity of a criminal statute, court must compare the severity of the offense being punished and its sentence with punishment imposed for other crimes in the jurisdiction and for the same crime in other jurisdictions; in evaluating those factors, court must consider evolving standards of decency that mark the progress of a maturing society.

17. Criminal Law <s=l213 Statutory penalties of one-year imprisonment and a $5,000 fine for possession of marijuana did not violate the Eighth Amendment's ban on cruel and unusual punishment. U.S.C.A.Const. Amend. 8.


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.

Snip 

p. 130

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, 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).

snip

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, …….. Justice Douglas, in his opinion for the Court, stated that a right of privacy exists in the "penumbras" of the Bill of Rights, 381 U.S. at 484, 85 S.Ct. at 1681,

p.131

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.

snip

Nevertheless, the Court held that their possession [porn] in the home was protected. This right to receive information and ideas, regardless of their social worth, . . . is fundamental to our free society. …… that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy.394 U.S. at 564.

P. 132

[1] 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,

[2] 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 "explicitl or implicitly guaranteed by the Constitution."

P.133

[3] 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. Without that first amendment right at issue, Stanley would have no right to privacy in the home. The Court specifically stated:

What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. Our holding in the present case turns upon the Georgia statute's infringement of fundamental liberties protected by the First and Fourteenth Amendments. No First Amendment rights are involved in most statutes making mere possession criminal.

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.

p.134

The Government disagrees and contends that all three criteria are met. It claims the drug has a "high potential for abuse," ……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

p. 142