The Legislative Response To Marihuana: When The Shoe Pinches Enough

Abstract

The emergence of marihuana in the United States from an obscure drug used mainly by members of minority groups and fringe elements, to the third most widely used recreational drug in the country (after tobacco and alcohol) and the most widely used illicit drug, was one of the major drug developments of the last decade. Similarly, the quick legislative response in reducing penalties for possession of marihuana for personal use (and in some cases for distribution also) is one of the most important legal developments of the decade.(1) Legislative change - particularly major penalty reductions in criminal statutes - often proceeds at a glacial pace, but in the case of marihuana possession drastic changes in penalties came remarkably quickly, demonstrating that when the shoe pinches enough legislatures can and will respond. This article will examine the process of change in marihuana possession penalties in the last decade.

Before Change: Base Line 1967

To appreciate how much our laws dealing with marihuana possession have changed we must realize that as recently as 1967 marihuana was generally classified by American law with narcotics like heroin, and both those who trafficked in it and those who used it were subject to the imposition of Draconian penalties. Under federal law, penalties were the same as for narcotics and were quite harsh.(2) All significant federal marihuana offenses were felonies carrying high penalties.(3) Some federal offenses carried from five to twenty years of imprisonment for a first offense and from ten to forty years for a second offense.(4) Even the lightest offense carried a term of from two to ten years for a first offense, five to twenty for a second offense, and ten to forty for a third offense.(5) While a first offender user-possessor could be prosecuted under this provision, he or she could also be prosecuted for one of the offenses carrying the five to twenty year penalty, because proof of possession, unless explained to the satisfaction of the jury, was sufficient evidence to support a conviction of this offense.(6) In addition, with the exception of first offenders convicted of the offense carrying the two to ten year term of imprisonment, marihuana violators could not be placed on probation or given suspended sentences.(7) In fact, from 1956 until 1966 these same offenders could not even be paroled.(8) A 1966 amendment, however, restored their eligibility for Parole. (9)

State penalties were also quite severe, and most offenses were felonies.(10) Marihuana was classified as a narcotic under the Uniform Narcotic Drug Act, which in whole or in part was the basis of control in forty-eight of the fifty states.(11) Simple possession was prohibited in all states, and some states prohibited use also.(12) Simple possession(13) of any quantity (no matter how small) was a felony in almost all the states,(14) and the penalties for it were often very high.(15) Except in a few states, the law made no distinction in penalties between marihuana offenses and violations involving narcotics.(16) Also, some states did not distinguish for penalty purposes between simple possession and distribution, so that user-possessors were subject to the same penalties as traffickers.(17)

Change

Within a short time much of this was to change. Many began to advocate decriminalization of simple possession and casual distribution; others to urge that marihuana be legalized for recreational use ala tobacco or alcohol; and still more to concede that there was a need to make first offense simple possession of marihuana a misdemeanor, or at least to give prosecutor or judge the discretion to prosecute or sentence possessors for misdemeanors rather than for felonies, or to eliminate mandatory minimum sentences.

Change Begins

Change began in 1968 when Alaska, California and Vermont reduced possession penalties.(18) In 1969 and '70 many more states followed suit. "By the beginning of 1970," according to Bonnie and Whitebread, "Twenty-one states had reduced the penalties for possession of marihuana. This trend continued during 1970, as eleven more states acted. . . "(19) Initially, the extent of change was not always great. Some states just gave prosecutor or judge discretion to prosecute or sentence possessors for misdemeanors instead of felonies.(20) Also, particularly in the beginning, in some states the price of lowering possession penalties was to enact higher penalties for distribution.(21) However, in many states possession for personal use(22) was lowered for a first offense to a misdemeanor carrying a maximum of a year in jail, and/or a fine.(23) While any incarceration is a significant punishment, at least long terms of imprisonment were no longer permissible in these states, and first-offense possession no longer carried the stigma of felony. In addition, as permissible penalties were lowered the courts began to place more first offenders on probation or to give them suspended sentences.(24)

Also in 1969 Nebraska took the then giant step of making first offense possession a misdemeanor punishable by only seven days in jail,(25) and beginning with Vermont in 1968,(26) several states reduced the penalty for first offense possession to not more than six months in jail.(27) In 1970 jail or prison for first offense possession of pot for personal use had become a thing of the past in New Jersey as the New Jersey Supreme Court held that the courts of that state should place on probation or give suspended sentences to all first offenders convicted of possessing marihuana for their own use.(28)

The Federal Controlled Substances Act

Also late in 1970 Congress enacted the federal Controlled Substances Act, one of the major landmarks in the history of American drug control.(29) This legislation, which had been in preparation for over two and one-half years, and before the Congress for almost two years, covered narcotics, barbiturates and other central nervous system depressants, amphetamines and other central nervous system stimulants, and hallucinogens. It classified marihuana as a hallucinogen.(30) The Act was an attempt to rationalize federal control over mind and mood-altering drugs,(31) and it repealed virtually all earlier federal drug control legislation, including the Harrison Narcotic Act, the Narcotic Drug Import and Export Act, and the federal Marihuana Tax Act.

The new federal Act drastically reduced federal marihuana penalties not only for simple possession, but also for most trafficking and distribution offenses. Except in the case of certain professional criminals, it also eliminated the mandatory minimum penalties which had characterized earlier federal law.

The 1970 federal Act made trafficking in marihuana punishable by not more than five years imprisonment and/or a fine of no more than $15,000 for a first offense, and double that for a second offense(32) (compare this with the five to twenty and ten to forty year terms of imprisonment mandated by the old federal law). Probation and parole were again available.

In recognition of the fact that marihuana users often give a little to their friends without charge - much as a good host offers his guest a drink -, the Act also made the distribution of "a small amount of marihuana for no remuneration" (that is, a gift) subject to the lower penalties prescribed for simple possession rather than the higher penalties for trafficking.(33) While the Act itself is not clear about what constitutes "a small amount of marihuana," the legislative history of the Act indicates that the provision was intended to cover the transfer of only one or two cigarettes without charge and that larger transfers were intended to be treated as unlawful trafficking.(34)

The federal Act also drastically reduced the penalties for simple possession of marihuana. It made first offense simple possession of all controlled drugs - from heroin to marihuana - a misdemeanor subject to a maximum of a year's imprisonment and/or a fine of not more than $5,000.(35) These penalties are doubled for subsequent offenses.(36) Probation and parole are, of course, available.(37)

In addition to probation and parole, the federal Act made provision for two other devices intended to reduce stigmatization of first-offender possessors - "conditional discharge" and a procedure for expungement of records of young offenders. Under conditional discharge(38) a first offender found guilty of simple possession, may, if he consents, be placed by the court on probation for up to one year without entry of a judgment of guilt. The court may dismiss the proceedings before the end of the probationary period and discharge the defendant from probation. Or, if during the period of probation the defendant does not violate any of the conditions of his probation, the court must dismiss the proceedings against him at the end of the probationary period. The dismissal of the proceedings does not for most purposes(39) leave the defendant with a criminal record. In addition, on dismissal of proceedings against a defendant who was twenty-one or younger at the time of the offense, the defendant may apply to the court for an order to expunge all information relating to his offense from almost all official records.(40) The court must grant the order after a hearing. The person may then freely deny having been attested charged, or tried for the offense without being subject to the penalties for perjury.(41)

The Federal Controlled Substances Act has had great impact on state legislation dealing with control of mind and mood-altering drugs in general and with marihuana in particular. Over forty states have enacted drug control legislation modeled on the federal Act and on a Uniform Act (the Uniform Controlled Substances Act) based on the federal Act.(42) The penalty structure of the federal act dealing with marihuana offenses influenced later reductions in marihuana penalties (for both trafficking and possession) in a number of states. In addition, a number of states borrowed from the federal Act conditional discharge(43) and special treatment for the distribution of a small amount of marihuana "for no remuneration."(44) And finally, some states have also included the expungement provision or a variation of it, in their laws.(45)

The federal Controlled Substances Act went into effect on May 1, 1971. Reduction in penalties in the states also continued in that year. In fact, enough other states reduced penalties in 1971 that Ronnie and Whitebread could say:

The penalty reduction phase of marihuana prohibition has been all but completed in 1971. In that year sanctions were ameliorated by fifteen states that had not already done so in the three previous years and were reduced even more by fourteen other states. By the end of 1971 only three states (Texas, Pennsylvania, and Rhode Island) maintained mandatory felony penalties for possession, although four other states (California, Arizona, Mississippi, and Nevada) allowed prosecution as a misdemeanor or a felony in the discretion of the prosecutor.(46)

These 1971 reductions went a little further in toto than had earlier reductions. By the end of 1970 reductions for possession for personal use or possession of small quantities to not more than one year in jail and/or a fine had become something of a norm for change, though several states had gone farther. In 1971 only a little more than half the reductions stopped at the one year maximum.(47) In that year five states adopted a maximum penalty of six months,(48) and three others a maximum of three months.(49) West Virginia went even further. It provided that all first offenders must be given the benefits of conditional discharge,(50) and Massachusetts provided that all first offenders must be placed on probation unless the judge "filed a written memorandum stating the reasons" for not doing so.(51)

The Marihuana Commission

The same legislation which contained the federal Controlled Substances Act also created the National Commission on Marihuana and Drug Abuse.(52) The Commission was composed of thirteen members: - two members of the Senate appointed by the President of the Senate, two members of the House of Representatives appointed by the Speaker of the House, and nine members appointed by the President.(53) It was, among other things, to conduct a study of marihuana, including "an evaluation of the efficiency of existing marihuana laws."(54) In March 1972, the Commission issued its report on marihuana, Marihuana: A Signal of Misunderstanding. While the Commission rejected legalization ("regulation") of marihuana "at the present time," it recommended a scheme of partial prohibition of marihuana.(55) Sale and noncasual distribution of marihuana would still be prohibited and criminalized, but the treatment of possession and casual distribution would change.

Specifically, the Commission recommended that federal law be changed so that "possession of marihuana for personal use would no longer be an offense," though "marihuana possessed in public would remain contraband subject to summary seizure and forfeiture;" and that "casual distribution of small amounts of marihuana for no remuneration, or insignificant remuneration not involving profit would no longer be an offense."(56) Under this last recommendation not only gifts, but small "sales" - where a person does a favor for a friend by selling him a small amount of pot from his own stash at cost - would not be subject to any sanction.

The Commission also recommended that state law be changed(57) so that possession of marihuana for personal use in private would no longer be an offense; so that distribution in private of small amounts of marihuana for no remuneration or for insignificant remuneration not involving a profit would no longer be an offense; so that possession of one ounce or less in public would not be a criminal offense, but that the marihuana possessed in public would be confiscated and forfeited to the state; and so that a number of public activities would be criminal offenses punishable by a fine of $100, only, and not by imprisonment or jailing. These public offenses were possession in public, use in public, and distribution in public of small amounts for no remuneration or insignificant remuneration not involving a profit.(58) Sale and non-casual distributions would still be prohibited and criminalized. In addition, the Commission recommended that "disorderly conduct associated with public use of or intoxication by marihuana" should be a misdemeanor punishable by a short jail term, a fine, or both; and that operating a vehicle or dangerous instrument under the influence of marihuana should be a misdemeanor punishable by up to one year in jail, a sizeable fine, or both, and suspension of the driver's or operator's permit for up to six months.

Later Changes and the Beginnings of Decriminalization

Amelioration of marihuana penalties did not end in 1971. Penalty reduction has continued, though to be sure, at a slower pace. The recommendations of the National Commission on Marihuana and Drug Abuse played a major part in this. All but two of the states that by the end of 1971 still retained felony penalties for a first offender possessing any quantity of marihuana have revised their laws. Specifically, since 1971 Pennsylvania, Rhode Island and Texas have abandoned mandatory felony penalties for possession and have downgraded at least some marihuana possession offenses to the misdemeanor level. Pennsylvania acted in 1972;(59) Texas in 1973 repealed the most stringent law in the nation (even a first-offense possessor could be sentenced to life imprisonment);(60) and Rhode Island amended its law in 1974.(61) In 1972 Mississippi removed the prosecutor's discretion to treat possession of even a small quantity as a felony by making possession of an ounce or less a misdemeanor,(62) and California did the same in 1975.(63) Only Arizona and Nevada have made no changes. Arizona still retains prosecutorial and judicial discretion to treat possession as either a felony or a misdemeanor.(64) For adults, Nevada's law is now the most severe in the nation. Although there is discretion to treat possession of less than an ounce by an offender under the age of twenty-one as either a misdemeanor or a felony, if the offender is twenty-one or over he is a felon. (65)

In addition, while neither Congress nor any state legislature has entirely removed sanctions from possession of small quantities of marihuana, eight states have eliminated the risk of being imprisoned or jailed for possession of such quantities, and a small number have also attempted to minimize the stigmatization and collateral consequences attendant on conviction of a crime. Oregon, as Professor Titus so well describes, was the first to do so. In 1973 it enacted legislation providing that unlawful possession of less than one ounce of marihuana is a "violation" punishable by a fine of not more than $100.(66) This legislation also treated use and being under the influence of marihuana in the same way.(67) In Oregon conviction of a "violation" does not give rise to any disability or legal disadvantage based on conviction of a crime.(68)

While Oregon was alone in 1973, several states followed in 1975. The change in the California law was of gigantic proportions. California in one step moved from a law that still permitted simple possession to be treated either as a felony or a misdemeanor in the discretion of the prosecutor or judge to a law that makes possession of one ounce or less a misdemeanor punishable by a fine of not more than $100.(69) Colorado made possession of one ounce or less a "class 2 petty offense," punishable by a fine of not more than $100.(70) In Maine possession of a usable amount of marihuana is a "civil violation for which a forfeiture of not more than $200 may be adjudged."(71) In Ohio if a person possesses less than one hundred grams of marihuana, he commits a minor misdemeanor punishable by a fine of not more than $100.(72) Arrest for or conviction of this minor misdemeanor "does not constitute a criminal record."(73)

The Alaska situation is more complicated. Under 1975 Alaska legislation possession by a person eighteen or older of any amount of marihuana in private for personal use, and possession of no more than one ounce in public are each subject to a maximum "civil fine" of $100.(74) (Interestingly and meaningfully, possession or use by a person under the age of 18 is a misdemeanor punishable by a maximum fine of $1,000.(75) ) However, only a few days after this legislation was enacted and several months before it was to become effective, the Alaska Supreme Court held that "possession of marihuana by adults at home for personal use" was protected by the right to privacy.(76) The effect of this decision is to invalidate the civil fines for adult possession for personal use in the home, and to make the law in Alaska more lenient and closer to the model suggested by the National Commission on Marihuana and Drug Abuse than the law in any other American jurisdiction.

Two states have acted (up to this writing) in 1976. Minnesota made first-offense possession of one and one-half ounces or less a "petty misdemeanor." This offense is punishable by a fine of no more than $100, and in addition, the offender must participate in an approved drug education program unless the court enters a finding that this is inappropriate.(77) And South Dakota enacted the most far-reaching legislative reduction of possession penalties. Effective April 1, 1977 possession of one ounce or less is a "petty offense" carrying an "award" to the state of not more than twenty dollars, collectible in a civil law suit.(78)

A few states have also removed the possibility of imprisonment or jailing (at least for a first offense) for gifts of small amounts of marihuana. They are Ohio, California, and Colorado. In Ohio a gift of twenty grains or less is a "minor misdemeanor" punishable by a fine of not more than $100 for a first offense; later offenses may draw a short prison term.(79) In California a gift of one ounce or less is a misdemeanor punishable by a maximum fine of $100.(80) And in Colorado a gift of an ounce or less is deemed possession and is punishable by a fine of not more than $100.(81) Neither California nor Colorado enhances the punishment for later offenses; in these states the $100 fine is the maximum punishment regardless of whether or not the accused is a first offender.

Even in those states where possession of small quantities is still subject to jail or imprisonment, "doing time" is less common. (Parenthetically, it should be noted that when "time" is imposed, there is a very real risk that the offender is being arbitrarily singled out or is being sentenced for reasons other than his commission of the offense charged.) Also, in some areas prosecutors and police have informally adopted procedures under which possessors of small quantities may be charged with lesser offenses carrying no jail or prison time, but only a fine. Thus, in both Austin and Houston, Texas, at least some possessors of small quantities are charged with "attempted possession" of marijuana, which carries a maximum fine of $200, rather than with possession of two ounces or less, which carries a maximum of 180 days imprisonment, a maximum fine of $1,000, or both.(82) Also in these cities possessors of small quantities often (as a matter of local police policy) are not arrested, but are issued citations under which they may appear for processing oil their own. 'Me law is being mitigated in practice even though it is on the books.

Finally there is another development of the past few years which deserves special attention. Almost unnoticed, a significant number of states have begun to treat the sale of marihuana (at least under certain circumstances) as a misdemeanor rather than as a felony. While in the great majority of states all sales are still felonies, in eight states at least some sales are misdemeanors.(83) In Kentucky and Massachusetts first-offense sale of any quantity of marihuana is a misdemeanor. In Maine all sales are misdemeanors, regardless of whether the accused is a prior offender. In the other states misdemeanor treatment at least in part depends upon the quantity of marihuana sold. In Indiana a first-offense sale of less than a stated quantity is a misdemeanor. In Tennessee both first and second-offense sale of less than a stated quantity is a misdemeanor, but later offenses are felonies. In Hawaii, Illinois and South Dakota, all sales of less than a stated quantity are misdemeanors, regardless of the accused's prior record.

The Future?

So the movement towards amelioration of marihuana penalties continues. It is slower than it once was. It is not in the public eye as much as it was six or seven years ago, but this may actually be making change easier. As the National Commission on Marihuana and Drug Abuse hoped, marihuana is less laden with symbol than it once was,(84) and hence policy toward it may be made more rationally and calmly than it once was. It is probably not too optimistic to predict that imprisonment or jailing for possession and gifts of small quantities will eventually come close to disappearing in the United States, and that more and more states will come to treat some sales of marihuana as misdemeanors.

Whether eventually we will see "regulation," so that marihuana will be legally available for recreational use by adults somewhat like tobacco and alcohol are today (but hopefully with stringent restrictions on advertising and other controls intended to make high-risk use difficult), it is harder to say. The amelioration movement points in that direction, but it need not necessarily go that far. A policy of regulation would involve a shift of governments] policy toward marihuana from one of discouragement to one of neutrality if not approval (or at least would be perceived as involving such a shift). I believe that this would be a major shift in policy (much greater than that involved in reducing penalties generally or in making possession and gifts of small quantities fineable civil offenses). Consequently, I see its realization as much more difficult than these other changes. In addition, each change made in the law may reduce the perceived need for additional change-the shoe doesn't pinch as much as it once did. And finally, there is much room for non-enforcement of prohibitory laws without legalization or regulation. It is not uncommon to leave on the books criminal laws that are largely unenforced. We have done so with laws against fornication and adultery. We did so to a lesser extent during prohibition. Thurman Arnold said over forty years ago that "most unenforced criminal laws survive in order to satisfy moral objections to established modes of conduct. They are unenforced because we want to continue our conduct and unrepealed because we want to preserve our morals."(85) Where we will go only time will tell.

Why?

The truly amazing thing about the legislative developments I have described in this article is how quickly they occurred. Penalty reduction began in 1968, and reduction of first-offense possession for personal use to misdemeanor levels was (except for some mopping up operations) complete by the end of 1971; all this in four years! More basic reduction, toward the elimination of prison or jail, and the reduction of stigmatization, for possession and gifts of small amounts continues.

Nation-wide large scale reduction in criminal penalties is usually a slow thing indeed. How then did it all happen so quickly with marihuana?(86)

Preliminarily, though the legislatures began to respond in 1968 and 1969, the call for change of course began earlier. In 1966 the New York County Medical Society recommended that possession penalties be reduced.(87) In 1967 Dr. James Goddard, Commissioner of Food and Drugs expressed the view that simple Possession of marihuana should not be an offense and came to political grief for it.(88)

The work of the National Crime Commission (The President's Commission on Law Enforcement and Administration of Justice) released in 1967, was widely circulated and had impact on future legislative change. In its report, "The Challenge of Crime in a Free Society," the Commission objected to mandatory minimum sentences for criminal offenses in general and for narcotics and marihuana offenses specifically.(89) Speaking of narcotics and marihuana penalties, the Commission recommended:

State and Federal Drug laws should give a large enough measure of discretion to the courts and correctional authorities to enable them to deal flexibly with violators, taking account of the nature and seriousness of the offense, the prior record of the offender and other relevant circumstances.(90)

The Commission also decided "to comment specially on marihuana, because of questions that have been raised concerning the appropriateness of the substantive law applicable to this drug."(91) After a very candid review of existing knowledge about and competing views of the effects of marihuana, the relationship between marihuana and crime and violence, and the charge that marihuana was a prelude to addicting drugs,(92) the Commission concluded that:

... enough information exists to warrant careful study of our present marihuana laws and the propositions on which they are based.(93)

Thus, the Commission had the temerity to think that our marihuana laws might be in need of rethinking. In addition, two of its consultants made recommendations which went even further. One recommended that simple possession should be treated as a misdemeanor,(94) and another urged that simple possession should be decriminalized and should not be the subject of any sanction.(95)

The enactment of the Drug Abuse Control Amendments of 1965(96) to the Food, Drug and Cosmetic Act - in which Congress tightened and rationalized controls over amphetamines and similar stimulants, barbiturates and other depressants, and hallucinogens other than marihuana - also set many people to thinking very seriously about the propriety of then-existing penalties for marihuana offenses. In this 1965 legislation, while criminalizing distribution of these substances and possession with intent to distribute them Congress chose not to ciminalize possession of these drugs for personal use.(97) How inappropriate felony penalties for possession of marihuana for personal use seemed when under federal law possession for personal use of amphetamines, barbiturates, and LSD was not even a misdemeanor and did not even carry a fine!

So, for several years before 1968 change had been in the winds.

In addition, while change in marihuana penalties did indeed come quickly, it must be remembered that the chaotic mid and late sixties and very early seventies were generally a time of rapid change. Everything about those days seems speeded up: - the enactment of civil rights laws and Great Society legislation, THE WAR, race and student riots, assassinations, Lyndon Johnson's decision not to run again. And visibility in the media too accelerated the pace of change.

Nevertheless, there were special reasons why the marihuana laws changed so quickly. Our legislatures were responding to the fact that for what was probably the first time in the history of the United States, the children of it's dominant class, that is the children of white middle class America, were being criminalized on a large scale and were being convicted and punished in significant numbers. The marihuana laws stigmatized as criminals not only those who were arrested, or convicted, or punished by jailing or imprisonment; they stigmatized as criminals all users of marihuana, even those who were never caught. And they stigmatized users not just as criminals, nor as misdemeanants, but as felons-which in our law is "…as bad a word as you can give to man or thing."(98)

In criminalizing the children of white middle class America the marihuana laws exposed them and their parents to all the costs and unpleasantness of criminal laws in general (arrests, booking, local jails and the effects of imprisonment) and of the drug laws in particular (searches and seizures, entrapments, and the use of informers are particularly prevalent in the enforcement of drug laws(99)). In short, our legislatures acted and acted quickly, because the shoe pinched, and the shoe that pinched was our own!

All of this was powerful impetus for change, but without something more it is questionable whether large-scale change could have come. Had the children of the middle class turned on to such concededly dangerous drugs as heroin, amphetamines, or LSD in the same numbers that they turned on to marihuana(100) it is doubtful that large-scale change would have occurred.(101) In choosing marihuana, however, the children of the middle class had chosen a drug whose reputed dangers could not withstand critical scrutiny. The main indictments against marihuana in the mid and late 60's and early 70's were that it led to violent crime and aggressive behavior, that it led to use of heroin, and also that it could lead to insanity or mental illness. By 1966 and 1967 it was becoming clear to those who wished to learn, that these risks were either non-existent or had been grossly exaggerated. It was becoming clear that use of marihuana did not lead to violent crime or aggressive behavior (on the contrary, there were some indications that marihuana might inhibit aggression); that while a majority of American heroin users had first used marihuana (they also had first used milk, tobacco and alcohol) before using heroin, there was no casual relationship between use of marihuana and use of heroin; and that marihuana could at most (and quite rarely, did) trigger tem orary panic reactions or psychotic episodes in those who were already predisposed.(102) By 1969 and 1970 these things were even clearer.(103)

In short, once subjected to critical scrutiny the case which law enforcement had made against marihuana fell apart. This is not to say that marihuana was or is harmless (no drug is under all circumstances of use harmless). Nor is to say that marihuana did not pose other risks, or that we knew in 1970 or know today all of its effects. It is to say that during the period from 1966 through 1970 it began to appear that marihuana was not a relatively harmful drug, and that millions of Americans used it with apparent safety.

So the fact that the case against marihuana had fallen apart when combined with its use by large numbers of middle class kids, brought change to the laws.

In addition, penalty reduction in the late 60's and early 70's can also be viewed as a symbolic peace offering or a sop to the young and to other groups disaffected with the War, "the establishment," those over thirty, "traditional values," or other aspects of American life. Reduction of marihuana possession penalties was perhaps the simplest way to make concession to the dissatisfied; it was certainly simpler than ending the War.

In the late 60's and early 70's the credibility gap was at its height. Both its biggest cause and its biggest manifestation was the war in Vietnam (remember the Tet offensive of early 1968 and the Cambodian "incursion" (and Kent State) in the Spring of 1970). But it extended to many other aspects of American life. As far as drugs were concerned, "You lied to us about marihuana. How do we know you're not lying about heroin too?" Marihuana was in fact a symbol of loss of credibility. Since we were caught with our pants down on pot, the least we could do (or the least we could get away with doing) was to reduce penalties for its possession. We might even reduce penalties for small gifts too.(104) We could then show that we were after all, credible.