Possession of marijuana has been criminalized in most states since the 1930s. At long last the tide appears to be turning: Colorado and Washington have legalized recreational use of the drug. Oregon and Alaska have enacted legislation to the same effect. Washington, DC appears on the brink of following suit. Nonetheless, marijuana remains illegal both under federal law and the law of most states. In addition, there are many powerful people and organizations who feel it is their duty to enforce these laws.
The rash doctrine often uttered by prosecutors, judges, and politicians is that so long as a law is on the books it must be enforced. Against this stands the almost universal experience of mankind. It’s unlikely anyone who ever actually studied the growth and change of the law would hold that a statute should be enforced simply because it is on the books. Any student of the law knows this is an idle statement made by those ignorant of history, or by those especially eager to enforce some particular law.
Most laws grew out of societal customs. Such customs became moral attitudes and were eventually established as laws. Long before statutes were passed, the great majority had already formed their attitudes and notions of right and wrong. Statutes are simply a codification of existing norms. Every once in a while, however, an active minority, motivated by religious fervor, political intolerance, or some other special interest is able pass a law not founded in common sense morality. These laws are often draconian, arrogant, and oppressive. They violate public conscience and the beliefs of many citizens.
No better illustration can be found than the laws enacted by the Inquisition. Such laws were meant to enforce religious doctrines, and for better than four centuries were used to torture and execute millions of people. The reign of terror virtually annihilated freedom of thought and expression throughout most of Europe. We now look back at the Inquisition with horror, yet we forget the means by which such laws were gotten rid of.
Religious persecution was not abolished by repealing the laws enacted to justify it. Rather the inquisitors themselves gradually refused to enforce the laws. They framed all manner of excuses and evasions until they finally undertook their appointments and salaries without any thought of performing the bloody services for which their offices were created. In some cases the laws were eventually repealed. In others they remained on the books but fell into disuse. A few have never been formally repealed to this day. Such laws are dead because even the most unenlightened person would refuse to torture and burn people at the stake solely on the grounds that the government must enforce all laws remaining on the books.
It should be noted that in many cases religious and legal authorities attempted to continuing enforcing the laws of the Inquisition–and related laws punishing witchcraft–after long public opinion had turned against such laws. People continued to be brought to trial under these outdated and barbaric statutes. Officials relaxed their efforts only when juries composed of common people repeatedly refused to convict. The change in the law came not because the statutes were repealed, but rather because juries were too humane and decent to follow the law.
Laws against organized labor fell for the same reason. For a time near the end of the 19th century it was a felony for one worker unhappy with his wages or working conditions to solicit another to join him in a strike. Such laws were enacted by corporations who wanted free competition among individual workers. They flourished until nullified by juries. Only long afterwards were they repealed.
So-called “Blue Laws”–which made it a crime not to attend church regularly, for women to wear silk and ribbons in their hair, and to work on the Sabbath–died in the same way. People ignored them, juries refused to convict violators, and they died on the vine. Some were eventually repealed as part of general legislative housekeeping. But many remain on the books to this day; they are not worth repealing because they are dead.
Laws prohibiting the possession and recreational use of marijuana need to fall to the same fate. Marijuana prohibition–like many of the outdated laws discussed above–was enacted by a minority of citizens and was initially allowed to stand because in the 1930s the drug was unknown to the vast majority of Americans. At the time marijuana use was primarily associated with black jazz musicians and Latin American farm workers–both distrusted racial minorities without political power. Opportunistic politicians took advantage of such bigotry and propagated blatant falsehoods about the so-called dangers of marijuana; so the drug was banned.
Now virtually all anti-marijuana propaganda has been exposed as pseudo-science. The drug is indisputably much less harmful than alcohol. In fact, the only supposed dangers of marijuana capable of withstanding scientific scrutiny are that marijuana smoke–like tobacco smoke–is damaging to the respiratory system and that people under its effects–just like people drinking alcohol–should refrain from driving or operating heavy equipment.
Further, marijuana prohibition is immensely expensive in terms of law enforcement and costs of housing those incarcerated for using and possessing it–not to mention ruining the lives of many people whose only “crime” is a fondness for an essentially harmless substance. Legalization would bring an end to these burdens and provide the government with an additional source of revenue through taxation.
I fully believe the marijuana prohibition will soon be abolished–indeed it is already underway–but for things to move promptly as they should it is not enough for people to petition the government for change. Citizens and juries need to see the difference between morality and the law, and we all need to dispense with the dangerous naivete of thinking that laws should be enforced simply because they are on the books.
Fitting laws to people is like fitting clothes to people. The people come first; the laws and clothes need to be fitted to them, not vice versa. We should take a lesson from Trajan, the Roman Emperor, as shown by his correspondence with Pliny. In the year 112 A.D. the campaign against the Christians was well underway. Pliny, the governor of a province, wrote Trajan for instructions on how to carry out prosecutions. Trajan replied: “Do not go out of your way looking for them.”