"we should scrupulously honor our Constitution's admonition that our traditional right to trial by jury is sacred"
Judge Lynch concurring in Lavelle v. MCAD, 426 Mass. 332; 688 N.E.2d 1331 (1997)
jurors have "not only have a right, but a duty....to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court."
Lester's Affidavit: Stroup & Cusick v Commonwealth
My name is Dr. Lester Grinspoon. I am an associate professor of psychiatry, emeritus at Harvard Medical School. Shortly after graduating from Harvard Medical School in 1955, I joined the faculty. Over the ensuing 45 years I have combined research and teaching with clinical practice.
I am the author of Marihuana Reconsidered (published by Harvard University press in 1971, second edition in 1977, republished as a classic in 1997). Based on my research I concluded that marijuana was far less harmful than either alcohol or tobacco and that its greatest harmfulness arose from the way we as a society were dealing with it
In the time since that initial research, I have devoted much of my professional career to studying the effects of marijuana, and I have to this day remained current and up to date with the latest research in this area.
The Massachusetts Supreme Judicial Court stated in Marcoux:
On review, we took note of the scientific evidence and concluded, as has the trial judge, that the Legislature could believe with reason that the use of marijuana created dangers both to users and others justifying public control. Marijuana is a psychoactive drug whose immediate effects may include inducement of a state of euphoria or anxiety or panic, reduction in motor control of, and alterations of time perceptions and memory. Although the causal links could be disputed, there was ground to suspect that the use of the drug was a factor in psychotic incidents experienced by some smokers, in the descent of users to harder and more dangerous drugs, and in the occurrence of highway accidents. As to the last danger, the difficulty or impossibility of testing drivers for marijuana intoxication could be thought to justify a ban on the substance rather than a qualified regulation of it. (Marcoux, page 65)
In this affidavit I will first address the three above noted areas of concern expressed in the Marcoux decision and then address those concerns which have attracted the most cannabis research attention since that decision in 1978.
Marijuana and Mental Health
Over a century of research reveals that marijuana does not cause mental illness. The 3,281 page report of the Indian Hemp Drugs Commission is probably the most comprehensive work on the topic. It documents no association between use of marijuana and mental illness, especially when other contributors to mental illness are taken into account. Recent research has also confirmed marijuana use does not cause psychological problems. With specific regard to anxiety and mood disorders, the most definitive work on the topic followed over 800 New Zealanders longitudinally and revealed no association. Other compelling evidence comes from epidemiological studies of different nations. Countries with a lot of marijuana use show no higher rates of mental illness than countries with less marijuana use.
Those papers that do suggest modest links between marijuana and mental illness often fail to account for other contributors. These contributors include cigarettes, alcohol,  hard drugs and symptoms that occurred prior to marijuana use. In addition, many of these studies suffer from methodological problems that make it impossible to conclude that marijuana caused a disorder. Inappropriate generalizations from small samples, statistical errors, biases in the assessment of symptoms, or failing to distinguish between momentary intoxication and chronic disorders are common in this literature. Once these other factors are taken into account, the link between marijuana and mental illness disappears.
An example of the failure to account for other contributors appears in a commonly cited article that claims to show increased anxiety in young women who smoke marijuana daily. Close examination reveals that despite an extensive assessment of marijuana use in the previous six months, assessments of the use of alcohol, cigarettes, and hard drugs cover only 7 days. Obviously, people could have used these drugs extensively prior to the previous week. In fact, they might have chosen to stop using these same drugs because of an anxiety reaction. Nevertheless, this failure to assess other drug use the same way that marijuana use is assessed artificially inflates the link between marijuana and problems. Most other frequently-cited studies on this topic make comparable mistakes in their assessments of the use of cigarettes, alcohol, or hard drugs.[10,11]
The literature on marijuana and mental illness frequently confuses self-medication of symptoms with factors that might generate disorders. If marijuana actually caused mental illness, marijuana use must precede the disorder. In fact, research suggests that symptoms precede rather than follow marijuana consumption. [12,13] Once initial symptoms of the disorder are taken into account, the link between marijuana and mental illness invariably shrinks.
Another common methodological error in this literature involves gross generalizations based on small samples of individuals with psychological problems. For example, a widely-cited study purports to link marijuana abuse with depression. A close look reveals that only 10 people of a sample of 1,920 were diagnosed with cannabis abuse and subsequently developed depression. Another widely-cited article claims that people with a specific genetic risk who are heavy cannabis users early in life are more likely to develop schizophreniform disorder. The results are reported in percentages, but a simple conversion reveals that the number of people who have the genetic risk, early cannabis use, and schizophreniform disorder is 7. Generalizations from such small samples are patently absurd. (Both of these studies also failed to provide proper controls for cigarette, alcohol, and hard drug use.)
Studies like these often lose their statistical significance if a single cannabis user is removed from the sample. For example, recent media reports suggest that psychiatric disorders are more prevalent in multiple sclerosis (MS) patients who use marijuana medicinally, based on an in-press article. The study actually found only 9 MS patients with psychological distress who also used medical marijuana. If the number had been 8 instead of 9, the effect would not have reached statistical significance. There would have been no headlines proclaiming a lack of mental illness in marijuana users, either.
Biases in the assessment of symptoms also appear commonly in this literature. At least five studies purport to link marijuana use to symptoms of schizotypal personality disorder, an illness typically associated with eccentric beliefs and odd experiences. [15,16,17,18,13] Schizotypal personality disorder is often assessed with The Schizotypal Personaity Questionnaire. Recent work reveals that items on this questionnaire are biased against cannabis users, making them appear to have symptoms when they do not. For example, one item asks participants to respond True or False to the statement âI use words in strange and unusual ways.â Marijuana users are more likely than non-users to respond âTrueâ to this statement. Nevertheless, they claim to use words in strange and unusual ways because of the slang expressions and argot associated with the marijuana sub-culture. It is not a sign of pathology. When this item is removed from the questionnaire, the scores of marijuana users and non-users are equivalent.
A further issue related to diagnosis concerns the separation of momentary intoxication from symptoms of disorders. A great many studies of marijuana and psychological functioning have confounded genuine symptoms of pathology with transient effects of the plant. Marijuana intoxication creates experiences that many users deem pleasant, but these experiences can also appear odd. If people report these experiences but do not explain that they were induced by cannabis, researchers can misinterpret the experiences as a sign of psychosis. Large doses of ingested marijuana or of hashish can create odd experiences, but this situation is not the same as schizophrenia. It lacks the formal thought problems and inappropriate emotions. It also dissipates relatively quickly, while schizophrenia remains a chronic mental illness. Few of the studies performed to date have separated genuine symptoms of a disorder from fleeting moments that occurred subsequent to marijuana use. Thus, they make marijuana users look more deviant.
The sum of these errors makes it clear that any link between marijuana and mental illness is illusory and likely stems from methodological artifacts or confounding with previous psychological distress or hard drug use.
 Indian Hemp Drugs Commission (IHDC) (1894). Report of the Indian hemp drugs commission. Simla, India: Government Central Printing Office.
 Denson, T. & Earleywine, M. (2006). Decreased depression in marijuana users. Addictive Behaviors, 31, 738-742.
 McGee, R., Williams, S. A., Poulton, R. & Moffitt, T. (2000). A longitudinal study of cannabis use and mental health from adolescence to early adulthood. Addiction, 95, 491-503.
 Hall, W. & Solowij, N. (1998). Adverse effects of cannabis. Lancet, 352, 1611-1616.
 Cujpers, P. Smit, F., ten Have, M., de Graaf, R. (2007). Smoking is associated with first-ever incidence of mental disorders: a prospective population-based study. Addiction, 102, 1303-1309.
 Fidalgo, T., da Silveira, E. & da Silveira, D. (2008). Psychiatric comorbidity related to alcohol use among adolescents. The American Journal Of Drug And Alcohol Abuse, 34, 83-89.
 Bosack, C., Camus, D., Kaufmann, N., Aubert, A. C., Besson, J., Baumann, P., Borgeat, F. Gillet, M., & Eap, C. B. (2006). Prevalence of substance use in a Swiss psychiatric hospital: interview reports and urine screening.
 Earleywine, M. (2002). Understanding Marijuana. Oxford University Press. New York: New York.
 Patton, G.C., Coffey C, Carlin J.B., Degenhardt L., Lynskey M., Hall W. (2002) Cannabis use and mental health in young people: cohort study. BMJ 325, 1195-1198.
 Bovas, G. (2001). Cannabis abuse as a risk factor for depressive symptoms. American Journal of Psychiatry, 158,2033-2037.
 Caspi, A., Moffitt, T., Cannon, M., McClay, J., Murray, R., Harrington, H., Taylor, A., Arseneault, L., Williams, B., Braithwaite, A., Poulton, R., & Craig, I. (2005). Moderation of the Effect of adolescent-onset cannabis use on adult psychosis by a functional polymorphism in the catechol-o-methyltransferase gene: Longitudinal evidence of a gene X environment interaction. Biological Psychiatry, 57, 1117-1127.
 Thornicraft, G. (1990). Cannabis and psychosis: Is there epidemiological evidence for an association? British Journal of Psychiatry, 157, 25-33.
 Schiffman, J., Nakamura, B., Earleywine, M., & LaBrie, J. (2005). Symptoms of schizotypy precede cannabis use. Psychiatry Research, 134, 37-42.
 Ghaffar, O., and Feinstein, A. (In Press; 2008). Multiple sclerosis and cannabis: A cognitive and psychiatric study. Neurology.
 Skosnik, P., Spatz-Glenn, L., Park, S., 2001. Cannabis use is associated with schizotypy and attentional disinhibition. Schizophren. Res. 48, 83-92.
 Mass, R., Bardong, C., Kindl, K., Dahme, B. (2001). Relationship between cannabis use, schizotypal traits, and cognitive function in healthy subjects. Psychopathology 34, 209-214.
 Dumas, P., Saoud, M., Bouafia, S., Gutknecht, C., Ecochard, R., Dalery, J., Rochet, T., dâAmato, T. 2002. Cannabis use correlates with schizotypal personality traits in health students. Psychiatry Research, 109, 27-35.
 Bailey, E. & Swallow, B. (2004). The relationship between cannabis use and schizotypal symptoms. European Psychiatry, 19, 113-114.
 Raine, A. 1991. The SPQ: A scale for the assessment of schizotypal personality based on the DSM-III-R criteria. Schizophrenia Bulletin, 17, 555-564.
 Earleywine, M. (2006). Schizotypy, marijuana, and differential item function. Human Psychopharmacology: Clinical and Experimental, 21, 455-461.
 Basu, D., Malhotra, A., Bhagat, A. & Varma, V. K. (1999). Cannabis psychosis and acute schizophrenia: A case control study from India. European Addiction Research, 5, 71-73.
Marijuana and the Gateway Myth
Although adverse effects of marijuana are minimal, many worry that use of the plant might influence users toward the use of hard drugs. If it were the case that marijuana leads to problems with hard drugs, three statements must be true: (1) marijuana use must correlate with hard drug problems, (2) the associations must not arise because of a factor common to both, and (3) the use of marijuana must precede the development of hard drug problems. Any causal relationship must show an association, the precedence of the cause, and the absence of any alternative, third-variable explanations. In fact, the correlation between marijuana use and hard drug problems is small, many who experience problems with hard drugs do not use marijuana first, and any association between marijuana and hard drugs arises because of factors common to both. Essentially, the link between marijuana and hard drug problems is spurious.
An extreme example can help illustrate the error in reasoning common among proponents of the gateway theory. Suppose data revealed that the crime rate in a city rises as the number of churches increases. This association might lead some cynic to hypothesize that churches cause crime. Data may suggest that the churches are built prior to the increases in crime, further supporting the theory. Both the association between the number of churches and crime, and the precedence of the churches appear. Nevertheless, these two facts alone do not establish that churches cause crime. An alternative explanation remains: as cities grow larger, both crime and the number of churches increase. The size of the population accounts for both of these increases. A third variable accounts for the association making it clear that churches do not, in fact, cause crime.
Similar evidence is actually available for marijuana and hard drugs. A small association exists between the two, but it arises because of personality traits in hard drug users, not an effect of marijuana. In addition, hard drug use does not invariably follow marijuana use and many people who use hard drugs problematically did not start with marijuana first.
National survey data reveal that the correlation between marijuana and hard drugs is small. The vast majority of people who try marijuana never try hard drugs. The vast majority of regular marijuana users do not become regular users of hard drugs, and fewer people still develop hard drug problems. The chance of becoming a regular user of crack cocaine after trying marijuana is less than 1 in 200. The chance of becoming a regular user of heroin after trying marijuana is less than 1 in 333. To put these numbers in perspective, this is worse than the odds of flipping a coin and getting "Heads" 8 times in a row. Gateway proponents suggest that hard drug problems are more common among those who use marijuana regularly, and some studies find a small but statistically significant effect consistent with this idea, but a close look at the work reveals that this association arises because of factors common to both behaviors, not because one causes the other.
Marijuana does not cause the use of hard drugs. A subset of people who develop problems with hard drugs also happen to use marijuana, based on aspects of personality, neighborhood, and parenting. Miller  analyzed data from 4 national surveys including over 6,000 participants and found that characteristics of individuals, not the cannabis plant, account for links between marijuana and hard drugs. The small subset of individuals in this sample who used marijuana and hard drugs essentially accounted for the entire association between the two. Another study of over 58,000 people found that marijuana use is not causally linked to hard drug use (even non-problematic use) once characteristics of the individual are taken into account. When these individual characteristics are ignored, as they often are in most research on this topic, the spurious association between marijuana and hard drugs returns. Essentially, marijuana does not cause hard drug problems, but a subset of people who used marijuana also happened to develop trouble with hard drugs. It is the individualâs propensity to use drugs, and not an effect of marijuana, that creates the illusion that marijuana covaries with hard drug problems.
Finally, if marijuana caused hard drug problems, its use would have to precede these hard drug problems. In fact, studies of treatment samples of people who live in neighborhoods of low socioeconomic status consistently show 12 to 39% use hard drugs prior to use of marijuana.[4,5] An illustrative study showed that 39% of a sample of hard active drug abusers and distributors used hard drugs before trying cannabis. Clearly, the alleged path from marijuana to hard drug use is not invariable. Most marijuana users do not use hard drugs and many hard drug users do not start with marijuana.
Marijuana use clearly does not cause hard drug problems. The alleged gateway pattern can be explained by common characteristics of those who use marijuana and other drugs.
 Earleywine, M. (2002). Understanding Marijuana. Oxford University Press. New York: New York.
 Miller, T. Q. (1994). A test of alternative explanations for the stage-like progression of adolescent substance use in four national samples. Addictive Behaviors, 19, 287-293.
 Morral, A., McCaffrey, D. F., dock, S. M. Reassessing the marijuana gateway effect. Addiction, 97, 1493-1504.
 Golub, A. and Johnson, B. D. (1994). The shifting importance of alcohol and marijuana as gateway substances and among serious drug abusers. Journal of Studies in Alcohol, 55, 607-14.
. Blaze-Temple, D. & Lo, S. K. (1992). Stages of drug use: a community survey of Perth teenagers. British Journal of Addiction, 87, 215-225.
 Mackesy-Amiti, M. E., Fendrich, M. & Goldstein, P. J. (1997). Sequence of drug use among serious drug users: typical vs. atypical progression. Drug and Alcohol Dependence, 45, 185-196.
Marijuana and Driving
Marijuana is the most common illicit substance consumed by motorists who report driving after drug use. Epidemiological research also indicates that marijuana is the most prevalent illicit drug detected in fatally injured drivers and motor vehicle crash victims. There are two reasons for this: first, marijuana is by far the most widely used illicit drug in the United States with nearly one out of two Americans admitting to have tried it  and second, cannabis is the most readily detectable illicit drug in toxicological tests. The primary psychoactive compound in cannabis, tetrahydrocannabinol (THC), may be detected in blood for days after last use, long after any psychoactive effects have disappeared. Furthermore, non-psychoactive byproducts of marijuana, known as metabolites, may be detected in the urine of regular users for weeks after last use. Other common drugs of abuse such as alcohol, cocaine and amphetamines are detectable for only short periods of time after their last use. Therefore, because marijuana's prevalence in toxicological evaluations of US drivers does not necessarily indicate psychoactivity at the time of the urine test, the results of those tests do not indicate causality in automobile accidents. Rather, its prevalence merely affirms that cannabis is far more popular and is far more easily detectable on drug screening tests than other psychoactive substances.
While it is well established that alcohol consumption increases accident risk, evidence of marijuana's culpability in driving accidents and injury is far less clear. Although acute cannabis intoxication following marijuana smoking has been shown to mildly impair psychomotor skills, this impairment is seldom severe or long-lasting. In closed course and driving simulator studies, the acute effects on psychomotor performance include minor impairments in tracking (eye movement control) and reaction time, as well as variation in lateral positioning, headway (drivers under the influence of cannabis tend to follow less closely to the vehicle in front of them), and speed (drivers tend to decrease speed following marijuana inhalation). In general, these variations in driving behavior are noticeably less consistent or pronounced than the impairments exhibited by subjects under the influence of alcohol. Also, unlike subjects impaired by alcohol, individuals under the influence of cannabis tend to be aware of their impairment and try to compensate for it accordingly, either by driving more cautiously  or by expressing an unwillingness to drive altogether.
Accordingly, cannabis-induced variations in performance do not appear to play a significant role in on-road traffic accidents when THC levels in a driver's blood are low and/or marijuana is not consumed in combination with alcohol.[9-10] For example, a 1992 National Highway Traffic Safety Administration review of the role of drug use in fatal accidents reported, "There was no indication that cannabis itself was a cause of fatal crashes" among drivers who tested positive for the presence of marijuana. A more recent assessment by Blows and colleagues noted that self-reported recent use of cannabis (within three hours of driving) was not significantly associated with car crash injury after investigators controlled for specific cofounders (e.g., seat-belt use, sleepiness, etc.).  A 2004 observational case-control study published in the journal Accident, Analysis and Prevention reported that only drivers under the influence of alcohol or benzodiazepines experience an increased crash risk compared to drug-free controls. Investigators did observe increased risks--though they were not statistically significant--among drivers using amphetamines, cocaine and opiates. They reported, "No increased risk for road trauma was found for drivers exposed to cannabis."
A handful of more recent studies have noted a positive association between very recent cannabis exposure and a gradually increasing dose-related risk of vehicle accident. Typically these studies reveal that drivers who possess THC/blood concentrations above 5ng/ml -- implying cannabis inhalation within the past 1-3 hours [14-15]--experience an elevated risk of accident compared to drug-free controls.[16-17] Motorists who test positive for the presence of THC in the blood at concentrations below this threshold typically do not have an increased risk compared to controls.  However, even this elevated risk is below that presented by drivers who have consumed even small quantities of alcohol.
Two recent case-controlled studies have assessed this risk in detail. A 2007 case-controlled study published in the Canadian Journal of Public Health reviewed 10 years of auto-fatality data. Investigators found that US drivers with blood alcohol levels of 0.05%--a level well below the legal limit of intoxication--were three times as likely to have engaged in unsafe driving activities prior to a fatal crash as compared to individuals who tested positive for marijuana. A 2005 review of auto accident fatality from France revealed similar results, finding that drivers who tested positive for any amount of alcohol had a four times greater risk of having a fatal accident then did drivers who tested positive for marijuana in their blood. In the latter study, even drivers with low levels of blood alcohol (below 0.05%) experienced a greater elevated risk as compared to drivers who tested positive for high concentrations of cannabis (above 5 ng/ml). Both studies noted that, overall, fewer traffic accidents appeared to be attributed to drivers operating a vehicle while impaired by marijuana.
There has been growing interest in the development of a simple roadside test for the presence of marijuana-induced psychoactivity. Two different kinds of approaches to the problem are being explored, one which will reveal impaired driving capacity through a simple roadside psychomotor test and the other to develop a practicable roadside test which determines, directly or indirectly, blood THC level. In Australia, efforts have been made to adapt elements of the roadside Standardized Field Sobriety Test (SFST) to make it sensitive to drivers who may be under the influence of cannabis. Scientific evaluations of these tests have shown that subjects' performance on the modified SFSTs may be positively associated with dose-related levels of marijuana impairment. Similarly, clinical testing for marijuana impairment among suspected drugged drivers in Norway has been positively associated with identifying drivers with THC-blood concentrations above 3 ng/ml. While the technology to instantly identify at the roadside a blood level of THC which signifies driver impairment (as the breatholizer test does for alcohol) does not yet exist, much effort is being made to develop such a technology and there is little doubt that it will soon be available.
 US Department of Health and Human Services, Substance and Mental Health Services Association, Office of Applied Studies. Driving after Drug or Alcohol Use, 1998. Accessed November 24, 2007.
 US Department of Transportation, National Highway Traffic Safety Administration. The State of Knowledge of Drugged Driving: Final Report. September, 2003
 October 23-24, 2002 CNN/Time poll conducted by Harris Interactive.
 Paul Cary. 2005. The marijuana detection window: determining the length of time cannabinoids will remain detectable in urine following smoking. Drug Court Review 5:23-58.
 Franjo Grotenhermen. Drugs and Driving: Review for the National Treatment Agency,UK. Nova-Institut (Germany). November 2007. Other summaries include: Ramaekers et al 2006. Cognition and motor control as a function of delta nine THC concentration in serum and oral fluid: Limits of impairment. Drug and Alcohol Dependence 85: 114-122; David Hadorn, "A Review of Cannabis and Driving Skills," In: The Medicinal Uses of Cannabis in Cannabinoids.
(eds:Guy et al). Pharmaceutical Press, 2004; Canadian Senate Special Committee on It Illegal Drugs, Cannabis: Summary Repor; Our Position for a Canadian Public Policy, 2002. (See specifically Chapter 8: "Driving under the Influence of Cannabis"); Alison Smiley, "Marijuana: On-road and Driving Simulator Studies," In: The Health Effects of Cannabis (eds. Kalant et al) Canadian Centre for Addiction and Mental Health, 1999.
 David Hadorn, 2004,op cit. and US Department of Transportation, 2003, op cit.
 According to the US Department Of Transportation, 2003, op.cit., "the extensive studies by Robbe and OâHanlon (1993), revealed that under the influence of marijuana, drivers are aware of their impairment, and when the experimental task allows it, they tend to actually decreased speed, avoid passing of the cars, and reduce the risk-taking behaviors."
 Menetrey et al, 2005. Assessment of driving capability through the use of clinical and psychomotor tests in relation to blood cannabinoid levels following oral administration of 20 mg dronabinol or a cannabis decoction made with 20 and 60 delta-9-THC. Journal of Analytical Toxicology 29:327-338.
 United Kingdom Department of Environment, Transport and the Regions, Road Safety Division; Cannabis and Driving: a Review of the Literature and Commentary. Online document accessed November 24, 2007. "Overall, we conclude that the weight of evidence indicates that... there is no evidence that consumption of cannabis alone increases the risk of culpability to traffic crash fatalities or injuries for which hospitalization occurs, and may reduce those risks."
 Gregory Chesher and Marie Longo, Cannabis Antialcohol in Motor Vehicle Accidents," In: Cannabis and Cannabinoids: Pharmacology, Toxicology, and Therapeutic Potential. (eds. Grotenhermen et al.) Haworth Press, 2002
 US Department Of Transportation, National Highway Traffic Safety Administration. The Incidence and Role of Drugs in Fatally Injured Drivers: Final Report. October, 1992
 Blows et al. 2004. Marijuana Use and Car Crash Injury, Addiction 100:605-611.
 Movig et al. 2004. Psychoactive Substance Use and the Risk of Motor Vehicle Accidents. Accident Analysis and Prevention 36:631-636.
 Huestis et al. 1992. Blood Cannabinoids: Absorption of THC and Formation of 11-OH-THC and THCCOOH During and after Smoking Marihuana, Journal of Analytical Toxicology 16:276-282.
 Mushoff et al. 2006. Review of Biologic Matrices (Urine, Blood, Hair) As Indicators of Recent or Ongoing Cannabis Use, Therapeutic Drug Monitoring 2 ; 155-163.
 Drummer et al. 2004. The Involvement of Drugs in Drivers Killed in Australian Road Traffic Crashes. Accident, Analysis and Prevention 36:239-248.
 Grotenhermen et al. 2007. Developing Per Se Limits for Driving under Cannabisâ (E-pub ahead of print).
 Grotenherman et al. 2007.op cit.
 Bedard et al. 2007. The Impact of Cannabis on Driving. Canadian Journal of Public Health 98:6-11.
 Lauman et al. 2005 Cannabis Intoxication and Fatal Road Crashes in France: a Population Base Case-Control Study, British Medical Journal 331:137
Marijuana and Pulmonary Risk
Both tobacco smoke and marijuana smoke contain non-specific quantities of a variety of respiratory irritants. Chronic exposure to these irritants has been associated with increased incidences of cough, sputum production, mild bronchitis, and wheezing compared to nonsmokers.[1-3] However, a recent meta-analysis of 30 years of data by investigators at Yale University reported that the inhalation of marijuana smoke -- even long-term â is not associated with a decline in pulmonary function (e.g., emphysema).
Like tobacco smoke, marijuana smoke also contains small quantities of some carcinogenic polycyclic aromatic hydrocarbons (PAHs), such as benzopyrene. According to the findings of a 2007 study published in the journal Chemical Research in Toxicology, mainstream cannabis smoke produces lower levels of these polycyclic aromatic hydrocarbons than tobacco smoke.
Unlike tobacco smoke, marijuana smoke contains cannabinoids such as THC tetrahydrocannabinol (THC) and cannabidiol (CBD) which are non-carcinogenic and demonstrate anti-cancer properties in vivo and in vitro. By contrast, nicotine promotes the development of cancer cells and their blood supply. In addition, cannabinoids stimulate other biological activities that may mitigate the carcinogenic effects of smoke.
Recently, a pair of clinical trials demonstrated that individuals greatly reduce their intake of cannabis-smoke byproducts by utilizing vaporization as an alternative to smoking. Marijuana vaporization is a process whereby the plant material is heated to within a temperature window within which cannabinoids vaporize. The lower and upper limits of the window are typically from about 360Â°F to 445Â°F which is below the ignition point of marijuana. Because the high end of the window is below the point of combustion, noxious smoke and PAHs are not produced. Vaporizers are becoming ever more popular with both recreational and medicinal users.
In the first study of vaporizers, published in the Journal of Pharmaceutical Sciences in 2006, investigators reported that vaporization delivered set doses of marijuanaâs primary active ingredient, THC, to subjects in a reproducible manner while suppressing the intake of respiratory toxins. The authors concluded: â[These] results show that with the Volcano [one of many commercially available types of marijuana vaporizers], a safe and effective cannabinoid delivery system seems to be available to [the public.] â¦ The final pulmonary uptake of THC is comparable to the smoking of cannabis, while avoiding the respiratory disadvantages of smoking.â
The second trial, published in the journal Clinical Pharmacology & Therapeutics in 2007, also reported that subjects who inhaled marijuana via the Volcano vaporizer significantly reduced their intake of gaseous combustion toxins, including carbon monoxide. Investigators concluded: âVaporization of marijuana does not result in exposure to combustion gases, ... and [was] preferred by most subjects compared to marijuana cigarettes. â¦ The Volcano [vaporizer] device is an effective and apparently safe vehicle for THC delivery.â
However, because most cannabis-using populations do not utilize vaporization technology, concerns persist regarding the potential health risks associated with the inhalation of marijuana smoke. Nevertheless, presumptions regarding cannabis use as a risk factor for the development of significant pulmonary complications, particularly lung cancer, are not affirmed by the scientific literature.
While a handful of anecdotal reports and two small case-control studies[12-13] associate heavy marijuana use with increased risk of head, neck and lung cancers in a minority of chronic users, no large scale population studies have replicated these results. In 2001, investigators at Johns Hopkins University reported that âlifetime useâ of cannabis was associated with head, neck or lung cancer in adults in a large, hospital-based case-control study of 164 oral cancer patients and 526 controls. Researchers concluded, âThe balance of evidence from this, the largest case-control study addressing marijuana use and cancer to date, does not favor the idea that marijuana as commonly used in the community is a major causal factor for head, neck or lung cancer in young adults.â
More recently, the results of a 2004 case-control study of 407 individuals diagnosed with oral squamous cell carcinoma and 615 healthy controls found âno associationâ between marijuana use and incidences of oral cancer, regardless of how long, how much, or how often individuals had used it. A second 2004 case-control study of 116 oral cancer patients and 207 matched controls also failed to identify any association between self-reported cannabis use and oral cancers in adults age 45-years-old or younger, although only 10 percent of patients in the study identified themselves as heavy users of marijuana.
A 1997 retrospective cohort study examining the relationship of marijuana use to cancer incidence in 65,171 men and women 15 to 49 years of age in California found that cannabis use was not associated with increased risks of developing tobacco-use related cancers â including lung and upper aerodigestive tract cancers, breast cancer, prostate cancer, colorectal cancer, or melanoma. Investigators reported no cases of lung cancer among men and women who used marijuana but did not smoke tobacco.
Most recently, a small case-control study from New Zealand reported that subjects who reported ever having used cannabis had no statistically significant elevated risk of lung cancer compared to non-using controls.
Government reviews have also failed to affirm a positive association between marijuana smoking and cancers of the lung, head, or upper aerodigestive tract. For example, a comprehensive 1998 report by the British House of Lords, Science and Technology Committee concluded, âThere is as yet no epidemiological evidence for an increase risk of lung cancerâ in cannabis smokers. An 18-month study by the US National Academy of Science, Institute of Medicine also affirmed, âThere is no conclusive evidence that marijuana causes cancer in humans, including cancers generally related to tobacco use.â
More recent epidemiologic reviews published in the journals Alcohol and Lancet Oncology provide similar conclusions. A review of two cohort studies and 14 case-control studies assessing the association of marijuana and cancer risk by Hashibe and colleagues concluded, â[R]esults of cohort studies have not revealed an increased risk of tobacco related cancers among marijuana smokers.â A 2005 review by Hall and colleagues concluded, "There is a conspicuous lack of evidence on the association between cannabis smoking and lung cancers.â
Finally, in 2006, the results of the largest population-based case-control study ever to assess the risk of marijuana use and lung cancer (1,212 cases and 1,040 demographically matched controls) failed to find any association between marijuana smoking and cancer, even among subjects who reported smoking more than 22,000 joints over their lifetime. Investigators concluded, â[C]ontrary to our expectations, we found no positive associations between marijuana use and lung or upper aerodigestive tract cancers. â¦ It is possible that marijuana use does not increase cancer risk â¦ [and may provide] a protective effectâ against the development of certain types of cancers in humans.
 Tetrault et al. 2007. Effects of marijuana smoking on pulmonary function and respiratory complications: a systematic review. Archives of Internal Medicine 167: 221-228.
 Sherill et al. 1991. Respiratory effects of non-tobacco cigarettes: a longitudinal study in general population. International Journal of Epidemiology 20: 132-137.
 Donald Tashkin. 1990. Pulmonary complications of smoked substance abuse. The Western Journal of Medicine 152:525-530.
 Tetrault et al. 2007.
 Moir et al. 2007. A Comparison of Mainstream and Sidestream Marijuana and Tobacco Cigarette Smoke Produced under Two Machine Smoking Conditions. Chemical Research in Toxicology (E-pub ahead of print).
 Sarfaraz et al. 2008. Cannabinoids for cancer treatment: progress and promise. Cancer Research 68: 339-342.
 John Minna. 2003. Nicotine exposure and bronchial epithelial cell nicotinic acetylcholine receptor expression in the pathogenesis of lung cancer. Journal of Clinical Investigation 111: 31-33.
 Robert Melamede. 2005. Cannabis and tobacco smoke are not equally carcinogenic. Harm Reduction Journal 2: 21.
 Gieriner et al. 2004. Cannabis vaporizer combines efficient delivery of THC with effective suppression of pyrolytic compounds. Journal of Cannabis Therapeutics 4: 7-26.
 Hazekampt et al. 2006. Evaluation of a vaporizing device (Volcano) for the pulmonary administration of tetrahydrocannabinol. Journal of Pharmaceutical Sciences 95: 1308-1317.
 Abrams et al. 2007. Vaporization as a Smokeless Cannabis Delivery System: A Pilot Study. Clinical Pharmacology & Therapeutics 82: 572-578.
 Aldington et al. 2008. Cannabis use and risk of lung cancer: a case-control study. European Respiratory Journal 31: 280-286.
 Zhang et al. 1999. Marijuana use and increased risk of squamous cell carcinoma of the head and neck. Cancer Epidemiology Biomarkers & Prevention 8: 1071-1078.
 Ford et al. 2001. Marijuana Use is not Associated With Head, Neck or Lung Cancer in Adults Younger Than 55 Years: Results of a Case Cohort Study. In: National Institute on Drug Abuse (Eds) Workshop on Clinical Consequences of Marijuana: Program Book. Rockville: Maryland.
 Rosenblatt et al. 2004. Marijuana use and risk of oral squamous cell carcinoma. Cancer Research 64: 4049-4054.
 Llewellynn et al. 2004. An analysis of risk factors for oral cancer in young people: a case-control study. Oral Oncology 5: 78-79.
 Sidney et al. 1997. Marijuana use and cancer incidence (California, United States). Cancer Causes & Controls 8: 722-728.
 Aldington et al. 2008.
 British House of Lords, Science and Technology Committee. 1998. Ninth Report. London.
[20 National Academy of Sciences, Institute of Medicine. 1999. Marijuana and Medicine: Assessing the Science Base. National Academy Press: Washington, DC. (page 119).
 Hashibe et al. 2005. Epidemiologic review of marijuana use and cancer risk. Alcohol 35: 265-275.
 Hall et al. 2005. Cannabinoids and cancer: causation, remediation, and palliation. Lancet Oncology 6: 35-42.
 Hashibe et al. 2006. Marijuana use and the risk of lung and upper aerodigestive tract cancers: results of a population-based case-control study. Cancer Epidemiology, Biomarkers & Prevention 15: 1829-1834.
Marijuana and Dependence
Cannabis is widely accepted by the National Academy of Sciences, Institute of Medicine (IOM) and other investigative commissions and committees (see above) to lack the severe physical and psychological dependence liability associated with most other intoxicants â such as alcohol, tobacco, cocaine, and heroin.
According to the IOM, âMillions of Americans have tried marijuana, but most are not regular users â¦ [and] few marijuana users become dependent on it.â Investigators further contend, â[A]though [some] marijuana users develop dependence, â¦ they appear to be less likely to do so than users of other drugs (including alcohol and nicotine), and marijuana dependence appears to be less severe than dependence on other drugs.â
Accordingly, authors of the IOM report estimate that fewer than 10 percent of those who try cannabis ever meet the clinical criteria for a diagnosis of âdrug dependenceâ (based on DSM-III-R criteria). Other surveys have placed this figure below five percent.[4-5] In contrast, the IOM reports that 32 percent of tobacco users, 23 percent of heroin users, 17 percent of cocaine users, and 15 percent of alcohol users meet the criteria for âdrug dependence.â
Those who allege that marijuana possesses addictive qualities similar to harder drugs like cocaine or heroin often cite figures regarding the rising number of individuals enrolled in drug treatment for having used cannabis. In reality, few of these individuals are in âtreatmentâ because they or their families believed that their marijuana use was adversely impacting their lives. Rather, most individuals in drug-treatment programs for cannabis were arrested for possessing minor amounts of marijuana and were referred to treatment by the courts as a requirement of their probation. In fact, data published by the US Substance Abuse and Mental Health Services Association (SAMHSA) indicates that voluntary drug treatment admissions for cannabis have fallen over the past decade, while criminal justice referrals for cannabis-related drug treatment have risen dramatically. (During this same time period, arrests for minor marijuana offenses have risen from fewer than 300,000 per year in the early 1990s to more than 800,000 per year.) As a result, according to current state and national statistics, an estimated 60 to 70 percent of all individuals in treatment with a primary diagnosis of âmarijuana dependenceâ are legally coerced into treatment.[10-11]
Finally, while a handful of recent clinical trials claim to have identified a distinctive âmarijuana withdrawal syndromeâ, it remains unclear whether such a syndrome is clinically significant. To date, reports of cannabis-associated withdrawal symptoms remain limited to subjective case reports of polydrug users, subjects enrolled in substance abuse drug treatment[13-17], or clinical trials involving very few participants[18-19]. By contrast, discontinuing chronic heavy dosing of THC in preclinical trials does not reveal withdrawal symptoms.
According to the Institute of Medicine, marijuana withdrawal symptoms are âmild and subtleâ compared with the profound physical syndromes associated with ceasing chronic alcohol or barbiturate use â which can be fatal â or those abstinence symptoms associated with daily tobacco use, which are typically severe enough to persuade individuals to reinitiate their drug-taking behavior.
Marijuanaâs absence of significant withdrawal effects is likely because âunder normal cannabis use, the long half-life and slow elimination from the body of THC â¦ can prevent substantial abstinence symptomsâ from occurring. As a result, said symptoms, when identified, are typically limited to feelings of mild anxiety, irritability and insomnia.[23-25] These abstinence symptoms do not appear to be severe or long-lasting enough to reinforce marijuana use in individuals who have ceased using the drug.
This lack of reinforcing abstinence symptoms arguably explains why those who report using marijuana in early adulthood typically report voluntarily ceasing their cannabis use by age 30 with little physical or psychological difficulty.[27-29] By comparison, most cigarette smokers who pick up the habit early in life continue to smoke for the rest of their lives, despite making numerous efforts to quit.
 National Academy of Sciences, Institute of Medicine. 1999. Marijuana and Medicine: Assessing the Science Base. National Academy Press: Washington, DC. (pages 92-96)
 Ibid. (page 98)
 Ibid. (page 95: Table 3.4 âPrevalence of Drug Use and Dependence in the General Population)
 Anthony et al. 1994. Comparative epidemiology of dependence on tobacco, alcohol, controlled substances, and inhalants: Basic findings from the National Comorbidity Survey. Experimental and Clinical Psychopharmacology 2: 244-268.
 National Academy of Sciences, Institute of Medicine. 1999. (page 97)
 Ibid. (page 95)
 Karl Hille. âPot withdrawal symptoms mirror nicotineâs, study finds.â Baltimore Examiner, January 25, 2008. (âTreatment admissions related mainly to marijuana use have more than doubled since the early 1990s, now ranking on par with cocaine and heroin nationwide, experts say.â)
 US Office of Applied Studies, Substance Abuse and Mental Health Services Administration. June 24, 2005. The DASIS (Drug and Alcohol Services Information System) Report, Differences in Marijuana Admissions Based on Source of Referral: 2002.
 US Office of Applied Studies, Substance Abuse and Mental Health Services Administration. March 29, 2002. The DASIS Report, Treatment Referral Sources for Adolescent Marijuana Users. http://www.oas.samhsa.gov/2k2/YouthMJtx/YouthMJtx.htm.
 Copeland and Maxwell. 2007. Cannabis treatment outcomes among legally coerced and non-coerced adults. BMC Public Health 7: 111.
 US Office of Applied Studies, Substance Abuse and Mental Health Services Administration. June 24, 2005.
 Vandrey et al. 2008. A within-subject comparison of withdrawal symptoms during abstinence from cannabis, tobacco, and both substances. Drug and Alcohol Dependence 92: 48-54.
 Levin et al. 2005. Severity of dependence and motivation for treatment: comparison of marijuana- and cocaine-dependent treatment seekers. Journal of Addictive Diseases 25: 33-41.
 Budney et al. 2006. The time course and significance of cannabis withdrawal. Journal of Abnormal Psychology 112: 393-402.
 Vandrey et al. 2005. Cannabis withdrawal in adolescent treatment seekers. Drug and Alcohol Dependence 78: 205-210.
 Budney et al. 1999. Marijuana withdrawal among adults seeking treatment for marijuana dependence. Addiction 94: 1311-1322.
 Crowley et al. 1998. Cannabis dependence, withdrawal, and reinforcing effects among adolescents with conduct symptoms and substance use disorders. Drug and Alcohol Dependence 50: 27-37.
 Budney et al. 2001. Marijuana abstinence effects in marijuana smokers maintained in their home environment. Archives of General Psychiatry. 58: 917-924.
 Vandrey et al. 2005. A cross-study comparison of cannabis and tobacco withdrawal. American Journal on Addictions 14: 54-63.
 National Academy of Sciences, Institute of Medicine. 1999. (page 91)
 Ibid. (page 90)
 Ibid. (page 58)
 Ibid. (page 90)
 Vandrey et al. 2008.
 Haney et al. 1999. Marijuana abstinence effects in marijuana smokers maintained in their home environment. Psychopharmacology 141: 395-404.
 Arendt et al. 2007. Withdrawal symptoms do not predict relapse among subjects treated for cannabis dependence. American Journal on Addictions 16: 461-470.
 Kandel et al. 1984,. Patterns of drug use from adolescence to young adulthood: Periods of risk for initiation, continued use, and discontinuation. American Journal of Public Health 74: 660-666.
 University of Michigan, Institute for Social Research. 1992. Monitoring the Future Occasional Paper No 35: Changes in Drug Use During the Post-High School Years (Ann Arbor).
 National Academy of Sciences, Institute of Medicine. 1999. (page 92) Marijuana and Dependence.
The Potency of Marijuana
Prior to the late 1990s, the potency of marijuana had averaged around 3 to 4% THC for two decades. According to the federally funded University of Mississippi at Oxford, which has been randomly testing seized samples of cannabis for THC content since the mid-1970âs, average THC levels have increased since 1998 from approximately 4% to approximately 8% today. However, the putative increment in potency does not mean increased risk. Because the effects of smoking cannabis are so much more rapidly perceived than are the effects of any psychoactive drug (including marihuana) taken orally, both recreational and medicinal users are enabled to quickly learn how to titrate the dose to achieve the desired effect. A user who smokes (or vaporizes) marijuana has to inhale less of a more potent sample and, conversely, more of one that is less potent. It follows that to the extent that inhalation of cannabis smoke is considered a risk factor for pulmonary disease, the more potent sample provides a healthier choice.
Claims that todayÂ¹s marijuana is far stronger and thus potentially more harmful to the health of the user than the cannabis available in previous decades are highly misleading for two other reasons. First, while a handful of cannabis strains significantly more potent than about 8% THC may be available in limited quantities today, these varieties comprise only a small percentage of the overall marijuana marketplace and are available only at prices that are cost-prohibitive to most users. Of the thousands of pounds of marijuana seized by law enforcement annually, few samples ever test positive for especially high percentages of the drugÂ¹s primary psychoactive ingredient THC. In fact, according to the US Drug Enforcement Administration (DEA), of the more than 4,600 domestic samples analyzed by the government between 1998 and 2002, fewer than two percent were found to contain THC levels above 20 percent. As a result, the federal government concedes that most of the marijuana available in the domestic drug markets is lower potency commercial-grade marijuana. Consequently, for the majority of todayâs cannabis consumers, marijuana remains essentially the same plant it has always been, with any relatively mild rise in average potency akin to the difference between beer and wine.
Second, unlike whiskeyÂ¬, or even aspirin,Â¬ marijuana poses no risk of fatal overdose, regardless of THC content. In fact, since 1985 when dronabinol (Marinol), which is 100% THC, was approved as a prescription pharmaceutical, physicians have been prescribing it to patients with a variety of illnesses in a wide range of doses with relatively few side effects. This more than two decades of legitimate medical use constitutes further evidence that THC is remarkably non-toxic to the brain. Furthermore there is growing evidence that the administration of cannabinoids may be neuroprotective against various types of brain injury, including damage associated with stroke  and acute alcohol poisoning.
Finally, it should be noted that marijuana smokers moderate their cannabis consumption to avoid dysphoria and other unpleasant effects. As a result, consumers of higher-grade cannabis typically take longer intervals between puffs and, overall, consume less marijuana by volume than they would if they were using lower quality marijuana.[10-11]
 Dan Forbes, âThe Myth of Potent Pot,â Slate.com, November 19, 2002,
 US Department of Justice, Drug Enforcement Administration. 2005. Drugs of Abuse. Washington, DC.
 US National Drug Intelligence Center. 2007. National Drug Threat Assessment. Washington, DC.
 Australian National Drug and Alcohol Research Centre. 1994. The Health and Psychological Consequences of Cannabis Use. Canberra. (See
specifically: Chapter 9, Section 9.3.1 Acute Effects: Â³There are no recorded cases of fatalities attributable to cannabis, and the extrapolated lethal dose from animal studies cannot be achieved by recreational users, http://www.health.gov.au/internet/wcms/publishing.nsf/Content/health-pubs-dr
 Mitch Earleywine. 2005. Understanding Marijuana: A New Look at the Scientific Evidence. London: Oxford University Press. (page 130)
 Hampson et al. 1998. Cannabidiol and Delta-9-tetrahydrocannabinol are Neuroprotective Antioxidants. Proceedings of the National Academy of Sciences 95: 8268-8273.
 Hamelink et al. 2005. Comparison of Cannabidiol, Antioxidants, and Diuretics in Reversing Binge Ethanol-Induced Neurotoxicity. Journal of Pharmacology And Experimental Therapeutics Fast Forward 314: 780-788.
 Mikuriya and Aldrich. 1988. Cannabis 1988: Old Drug, New Dangers Â¬ The Potency Question. Journal of Psychoactive Drugs 20: 47-55.
 Herning et al. 1986. Tetrahydrocannabinol Content and Differences in Marijuana Smoking Behavior. Psychopharmacology 90: 160-162.
 Abrams et al. 2007. Vaporization as a smokeless cannabis delivery
system: A pilot study. Clinical Pharmacology & Therapeutics 82: 572-578.
motion to dismiss and motion for jury instructions due march 10, 2008
hearing on these motions march 20, 2008 in rm. 10.
motion to dismiss the criminalization of marijuana smokers lacks rational basis.
supported by affidavit of dr. lester grinspoon, summarizing post-1979 research on harm and public attitude.
opening jury instruction
The People of the Commonwealth of Massachusetts, in forming a government of laws to better ensure their common protection and well- being, sought to preserve their liberty by reserving to the people the authority â in the form of the jury â to decide whether a fellow citizen should be publicly punished. This authority vests within the jury the right the right and power to return a verdict of âguiltyâ or ânot guiltyâ in the case before them. This verdict encompasses a finding of facts proving beyond reasonable doubt each and every element of the offense as defined by statute with which the defendant is charged, but also your determination of criminal guilt based on those facts.
The People of this Commonwealth, in order to protect their freedoms, gave the legislature the power to create laws, the executive the power to enforce them, and the courts the power to interpret and apply them. But it remains the right of the People, entrusted to a jury of free citizens, to stand between the governmentâs law and an individual accused of its violation.
Today you are the people, a jury of peers. All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, we the agents of the law are your substitutes and agents, and are at all times accountable to you. On this day in this court for this case you are the mind and heart of the people.
The massachusetts constition declares that no person be deprived of property, immunities, or privileges, or deprived of life, liberty, or estate, but by the judgment of his peers or the law of the land. So important is this right, that the legislature may make no law abridging the right to trial by jury for any one subject to infamous punishment. So great is this right it is not only recognized by the People of The Commonwealth of Massachusetts but by our nation as a whole, and as such in cases of common law no fact tried by a jury may be examined in any court of the United States. So important is this right that our founders our commonwealth's declaration of rights declared it sacred.
The reservation of this sacred right finds its most vital expression in your commission and responsibility to decide, in the light of the law as written by the legislature, enforced by the executive and interpreted by the judiciary, whether a particular application of the law warrants your verdict of criminal guilt. Yours is the power to pass judgment upon the question of whether a fellow citizen has committed a criminal act meriting public condemnation.
Your duties as jurors begin with a recognition of the accumulated wisdom embodied in my instructions regarding the law. They end with performance of your sacred role as the ultimate force for the protection and preservation of justice and liberty in our commonwealth.
Due process which i as judge will oversee shapes the case as it will be presented to you.
If you believe, that the prosecution has proved beyond reasonable doubt each and every element of the statutory offense as enacted by our legislature and as interpreted to you by me, and if you believe to a moral certainty, that the defendantâs proven conduct constituted a criminal act that deserves public condemnation and punishment, then you should enter a verdict of guilty.
If, on the other hand, you believe that the defendantâs conduct violated the letter of the law as i have given it to you but was not criminal â that it did not constitute a breach of the peace, threaten the publicâs welfare or public order, or prejudice any of the rights of others â and that it does not therefore merit public condemnation and punishment, then you may enter a verdict of not guilty.
two areas need development; explaining the distinction betweein guilty on the facts and guilty at law the other is whether the law itself is a just law as it is being applied in the case before you
MOTION TO DISMISS OR IN THE ALTERNATIVE PERMIT DEFENDANTS TO INFORM
Now come the defendants and move this Honorable Court dismiss the charges against them on the grounds that G.L. c. 94Câs prohibition on the possession of marihuana violates their rights and liberties secured by the Constitution of the Commonwealth of Massachusetts, defendants move they be permitted without sanction to argue to the jury that in fulfilling their oath to, âwell and truly try the issue between the commonwealth and the defendant, according to your evidence; so help you Godâ G.L. 278, Â§ 4 is âthe power of a juror to vote his or her conscienceâ even if at odds with all other jurors and the judges view of the facts and law, Commonwealth v. Hebert, 379 Mass. 752, 755-756 (1980)
MASSACHUSETTS CONSTITUTIONAL PROVISIONS
The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquillity their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.
The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.
We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts.
Declaration of Rights
Article 1. as replaced by Amendment Article CVI.
All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.
Article 2. It is the right as well as the duty of all men in society, publicly, and at stated seasons to worship the Supreme Being, the great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.
Article 4. The people of this commonwealth have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, which is not, or may not hereafter, be by them expressly delegated to the United States of America in Congress assembled.
Article 5. All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.
Article 7. Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men: Therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it.
Article 10. Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection; to give his personal service, or an equivalent, when necessary: but no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. In fine, the people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent. And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.
The legislature may by special acts for the purpose of laying out, widening or relocating highways or streets, authorize the taking in fee by the commonwealth, or by a county, city or town, of more land and property than are needed for the actual construction of such highway or street: provided, however, that the land and property authorized to be taken are specified in the act and are no more in extent than would be sufficient for suitable building lots on both sides of such highway or street, and after so much of the land or property has been appropriated for such highway or street as is needed therefor, may authorize the sale of the remainder for value with or without suitable restrictions.
Article 11. Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.
Article 12. No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel, at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.
Article 13. In criminal prosecutions, the verification of facts in the vicinity where they happen, is one of the greatest securities of the life, liberty, and property of the citizen.
Article 14. Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.
Article 15. In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practiced, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners' wages, the legislature shall hereafter find it necessary to alter it.
memorandum in support
Boston Globe 11/24/07: Marijuana Referendum Advances
Advocates of decriminalizing marijuana, banning greyhound racing, repealing the state income tax, and stripping out major portions of a major state development law appear to have cleared a major hurdle in their effort to hold statewide referendums on their issues next year.
The proponents had to gather at least 66,593 certified signatures by Nov. 21, equal to 3 percent of the total ballots cast in the 2006 gubernatorial election; each of the four groups appears to have done so, said Brian McNiff, a spokesman for the secretary of state's office.
The state's town and city clerks have until Monday to certify the signatures, and Secretary of State William F. Galvin has until Wednesday to count them.
But the burden for the advocates doesn't end there. If Galvin determines an initiative to have the requisite number of signatures, the Legislature has until the first Wednesday in May to make the proposals law. If lawmakers do not act, proponents have to gather another 11,099 signatures - half of 1 percent of the ballots cast in the 2006 gubernatorial election - by June 18.
Despite the difficult road ahead, supporters of the petitions that seemed likely to advance were jubilant.
"I think this was the real reason why the ballot process was created; this is a common-sense policy that is going to save $24.3 million a year in arrests and booking charges by creating a civil penalty system," said Whitney A. Taylor, chairwoman of the Committee for a Sensible Marijuana Policy, who said her group had collected more than 105,000 signatures in 349 of the state's 351 cities and towns.
The marijuana initiative would replace criminal penalties with civil penalties for people caught with an ounce or less of marijuana. She said 11 other states, including New York and Maine, have enacted similar laws.
Lester Grinspoon, Creating a sensible marijuana law
ALMOST HALF of American adults have tried marijuana, and the number of people who use it regularly has increased to about 15 million. This expanding use of marijuana can no longer be dismissed as simply a youthful fad that can be eliminated through the war on drugs.
Still, marijuana arrests account for nearly 44 percent of all drug arrests in the United States. According to the Uniform Crime Report, nearly 830,000 people were arrested in 2006 on marijuana charges, nearly a 15 percent increase over 2005. Nine out of 10 were arrested for mere possession.
Despite the increasing threat of arrest, the growing demands of employers for urine tests, and the ubiquity of the misinformation purveyed by the US government and the Partnership for a Drug-Free America, the number of Americans who experiment with or regularly use this substance continues to grow. So many people have discovered its remarkably limited toxicity and its versatility as a medicine that 12 states have now adopted legislation or initiatives that allow for its medicinal use and 12 states have decriminalized it by reducing penalties for possession of small quantities to a fine, with no arrest or jail penalty.
Massachusetts is considering decriminalizing minor marijuana offenses, with both proposed legislation and a proposed voter initiative.
from the concluding paragraph of porter
On the other point in the exceptions, the right of counsel to argue to the jury the points of law involved in the issue of a criminal trial, it necessarily follows as a consequence from the right of the jury to pass upon the law as well as the fact, in rendering their verdict. If, on the other hand, it be wrong for the jury to determine the law governing the case, against the judge, then the counsel ought not to be allowed to persuade them to do wrong; so that, if the jury are bound to take the law implicitly from the court, then neither argument of counsel nor explanation by the court, other than to lay down the law, would be fitting or necessary. And if there is no distinction in this respect, between civil and criminal issues, the counsel should argue the points of law to the court, and the court give the law to the jury, to be taken by them without deliberating thereon. But the uniform practice of counsel to argue the law to the jury, which was never before questioned or denied in our judicial history, clearly affirms the right of the jury to pass upon and determine, by their verdict, the law that is to govern the issue which they are sworn well and truly to try.
St. 1807, c. 140, Â§ 15, provides that in a criminal case "The jury shall try â¦ all criminal causes committed to them, and, after having received the instructions of the court, shall decide, in their discretion, by a general verdict, both the fact and the law involved in [**553] the issue, or they may, at their election, find a special verdict."
In the Leis case we disagreed with the contention that the use of marihuana involved a liberty of high constitutional rank.
the liberty to smoke marijuana is not of high constitutional rank. this does not mean it is not a liberty greatly valued by the people.
Therefore the validity of the legislation was to be tested in the first place by inquiring whether it bore a reasonable relation to any permissible object of legislation such as the protection of public health or safety.
this is the test by which the judiciary pits its power against the legislature. it is just this low test that leaves the vacuum into which the power of the people through participation in jury is meant to express itself.
Marcoux v. Attorney General
- Thirty-six named persons and sixteen pseudonymous persons.
- Supreme Judicial Court of Massachusetts
- 375 Mass. 63; 375 N.E.2d 688; 1978 Mass.
SYLLABUS: General Laws c. 99C, Ã 34, prohibiting the possession of marihuana, is a proper exercise of the police power and, even as applied to the personal possession of a small amount of the substance, does not infringe on the constitutional right of privacy. [63-72]
COUNSEL: Matthew H. Feinberg for the plaintiffs.
Barbara A. H. Smith, Assistant Attorney General, for the defendant.
JUDGES: Hennessey, C.J., Quirico, Kaplan, & Abrams, JJ.
Lodged in this court for Suffolk County, the action was brought by a number of plaintiffs, for themselves and a class of persons similarly situated, against the Attorney General as defendant. The complaint alleged that the defendant proposed to enforce against the plaintiffs and others a statute, G. L. c. 94C, Ã 34, which prohibits under penalty the knowing possession of marihuana; the relief sought was a declaration that the statute is unconstitutional at least as applied to the personal possession of a small amount of the substance. The defendant having attacked the complaint by motion to dismiss, the single justice held that it described a controversy suitable for a declaration, and he entered judgment in appropriate form upholding the constitutionality of the statute. He noted that a broad attack on the laws regulating the possession of (as well as the traffic in) marihuana had been repelled by this court in the case of Commonwealth v. Leis, 355 Mass. 189 (1969). 3 If the Leis case was to be overruled, he thought it should be done by the full bench. We are not prepared to overrule that 1969 decision, and accordingly we affirm the judgment appealed from.
2 See First Nat'l Bank v. Attorney Gen., 371 Mass. 773, 781, appeal pending in the Supreme Court of the United States, with question of jurisdiction reserved to hearing on the merits, 430 U.S. 964 (1977); Sturgis v. Attorney Gen., 358 Mass. 37, 38 (1970).
3 The defendants in Leis, prosecuted for possession of marihuana, possession with intent to sell, and conspiracy to violate the narcotic drug laws, moved in Superior Court to dismiss on constitutional grounds. The trial judge denied the motions but reported the question whether the relevant statutes violated provisions of the Constitutions of the C Commonwealth and the United States. 355 Mass. at 190.
In the Leis case we disagreed with the contention that the use of marihuana involved a liberty of high constitutional rank. Id. at 195. Therefore the validity of the legislation was to be tested in the first place by inquiring whether it bore a reasonable relation to any permissible object of legislation such as the protection of public health or safety.
We may observe that in the hands of this court, at least, such an inquiry has not been merely pro forma with a preordained conclusion favorable to the legislation. See Commonwealth v. Dennis, 368 Mass. 92, 96 (1975); Coffee-Rich, Inc. v. Commissioner of Pub. Health, 348 Mass. 414 (1965); Opinion of the Justices, 322 Mass. 755 (1948). In Leis the record at trial level comprised an inquiry through expert testimony into the medical and related aspects of the marihuana problem. See Marihuana and the Law: A Judicial Opinion, 3 Suffolk U.L. Rev. 23 (1968) (excerpts from trial judge's opinion). On review, we took note of the scientific evidence and concluded, as had the trial judge, that the Legislature could believe with reason that the use of marihuana created dangers both to users and to others justifying public control. Marihuana is a psychoactive drug whose immediate effects may include inducement of a state of euphoria or anxiety or panic, reduction in motor control, and alterations of time perceptions and memory. Although the causal links could be disputed, there was ground to suspect that use of the drug was a factor in psychotic incidents experienced by some smokers, in the descent of users to harder and more dangerous drugs, and in the occurrence of highway accidents. As to the last danger, the difficulty or impossibility of testing drivers for marihuana intoxication could be thought to justify a ban on the substance rather than a qualified regulation of it. See Leis, 355 Mass. at 195; 1972 Mass. House Doc. No. 5896, Ninth Interim Report of the Special Commission on Drug Abuse 85-90.
A showing that, since Leis, doubts about the drug had been resolved in its favor beyond reasonable scientific dispute, would portend a different legal result. See State v. Anonymous, 355 A.2d 79 (Conn. Supp. 1976). But the plaintiffs conceded at oral argument and in their brief that a fresh inquiry would yield no different result on application of a "rational relation" test. 4 As the single justice said, the complaint admitted implicitly that marihuana can be harmful in some circumstances. And the most recent judicial opinions (not excluding Ravin v. State, 537 P.2d 494 [Alas. 1975], which within certain limits held unconstitutional a prohibition of possession for private use) have found the apprehension of dangers to health and safety to be rationally based; they mention such risks as psychotic reactions and automobile accidents. See, e.g., State v. Anonymous, supra; Blincoe v. State, 231 Ga. 886 (1974); State v. Baker, 56 Haw. 271 (1975); State v. Kells, 199 Neb. 374 (1977). 5
4 The cases at times speak of legislation which need only undergo a test of "reasonable relation" and legislation that must survive "strict scrutiny," but we conceive that these soubriquets are a shorthand for referring to the opposite ends of a continuum of constitutional vulnerability determined at every point by the competing values involved. Cf. State v. Erickson, 574 P.2d 1, 11-12 (Alas. 1978).
5 Cited in the briefs of both parties is Marihuana and Health (Fifth Ann. Rep. to Congress from the Secretary of HEW, 1975), which states (at 10) that "evidence of a range of potentially serious consequences of marihuana use exists." For recent discussions of the scientific position, see the materials cited in 1972 Mass. House Doc. No. 5896, Ninth Interim Report of the Special Commission on Drug Abuse 91-96, and Ravin v. State, 537 P.2d 494, 504 n.43 (Alas. 1975).
The plaintiffs contend, however, that legislation which goes to the extreme of forbidding the possession in one's own home of a substance meant for personal use, invades a "zone of privacy" ( Griswold v. Connecticut, 381 U.S. 479, 484 ) and cannot be justified constitutionally by a slim demonstration of potential harm; better or more substantial reason would have to be shown. That contention, made in somewhat different form, was likewise rejected in Leis (355 Mass. at 195).
It is true that "privacy" has grown in constitutional estimation as related to certain matters in which individual autonomy is thought to be especially important and desirable. 6 Thus it is held that individual choice as to procreation and other core concerns of human existence may be circumscribed by the State only in deference to highly significant public goals. See, e.g., Roe v. Wade, 410 U.S. 113, 152 (1973); Framingham Clinic, Inc. v. Selectmen of Southborough, 373 Mass. 279, 285 (1977). And so, in our own decision of Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 738-742 (1977), we recognized a constitutional right of independent election, which may as well be called a right of privacy, as to the continuation of life itself: here the individual's choice whether to accept or decline medical treatment is normally beyond veto by the State. See also People v. Privitera, 74 Cal. App. 3d 936 (1977).
6 In Whalen v. Roe, 429 U.S. 598, 599-600 (1977), privacy is spoken of as comprising interests in "avoiding disclosure of personal matters" and "independence in making certain kinds of important decisions." The right to possess or use marihuana cannot be readily assimilated in character or importance to the kinds of rights just mentioned (cf. Whalen v. Roe, 429 U.S. 589, 600 n.26 ), but the plaintiffs contend that Stanley v. Georgia, 394 U.S. 557 (1969) (decided after Leis), is close to their case. Stanley was prosecuted for the possession in his home of material claimed to be obscene. The Court wrote that "[i]f the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." 394 U.S. at 565. The difficulties of proving that possession of obscene matter in a particular case was with intent to distribute (a state of facts assumed to be subject to criminal punishment) would not "justify infringement of the individual's right to read or observe what he pleases. Because that right is so fundamental to our scheme of individual liberty, its restriction may not be justified by the need to ease the administration of otherwise valid criminal laws. . . . We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime." Id. at 568. The plaintiffs think the Stanley case suggests that possession of marihuana in the home merits like immunity from governmental intervention, even though no cognizable First Amendment interest is involved. In this connection they cite dicta from the later opinions in Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), and United States v. Orito, 413 U.S. 139 (1973) (and might have added United States v. 12 200-Ft. Reels of Super 8 MM. Film, 413 U.S. 123, 126 ). These cases, upholding prosecutions for public exhibition and transportation of obscene films against constitutional challenge, sought to distinguish Stanley as having been decided "on the narrow basis of the 'privacy of the home,' which was hardly more than a reaffirmation that 'a man's home is his castle.'" 413 U.S. at 66. The Court said the "privacy right encompasses and protects the personal intimacies of the home" (Paris Adult Theatre at 65), and the "Constitution extends special safeguards to the privacy of the home, just as it protects other special privacy rights such as those of marriage, procreation, motherhood, child rearing, and education." Orito at 142.
This language does not announce a privacy doctrine universally demanding peculiar justification for enforcing the criminal law against conduct within private homes. Nevertheless such justification may be required when the effects of the behavior are limited more or less to the hearth. Thus the Paris Adult Theatre and Orito cases were stressing the point that in Stanley the place of the possession, the confinement of the viewing of the material, reduced to a null force, or nearly so, any claim of deleterious public effects which could possibly legitimate the State's intrusion. See also Smith v. United States, 431 U.S. 291, 307 (1977). The Stanley Court had indeed said, replying to the argument that the private reading of obscene matter would cause antisocial conduct, that there was "little empirical basis" for that assertion (394 U.S. at 566) and in all events the "least restrictive alternative" analysis familiar in First Amendment discussions would require that the State legislate against the antisocial behavior rather than the ideas that caused it. In contrast, in the case of marihuana, we are bound to assume for constitutional purposes that the private use does have public results, does spill over into the public domain and touch matters of legitimate State interest, while the freedom impaired by the penal statute, taken at its highest evaluation, does not reach the level of that freedom conceived by the Court to be implicated in Stanley.
We find direct confirmation for these views in Stanley where the Court speaks to possession of drugs among other contraband: "What we have said in no way infringes [***11] 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." 394 U.S. at 568 n.11. 7
7 That the Stanley decision resulted from a combination of its First Amendment orientation, the locus of the questioned conduct, and the confinement of the effects of that conduct, is suggested by a comparison with the Supreme Court's affirmance without opinion, 425 U.S. 901 (1976), of Doe v. Commonwealth's Attorney for Richmond, 403 F. Supp. 1199 (E.D. Va. 1975) (three-judge court), holding that the State could outlaw private homosexual conduct of consenting adults. See also Lovisi v. Slayton, 539 F.2d 349 (4th Cir. 1976); Enslin v. Wallford, 565 F.2d 156 (4th Cir. 1977) (unpublished opinion), [cert. denied sub nom. Enslin v. Bean, 436 U.S. 912 (1978)]. But note Commonwealth v. Balthazar, 366 Mass. 298 (1974), habeas corpus granted on other grounds sub nom. Balthazar v. Superior Court, 428 F. Supp. 425 (D. Mass. 1977), aff'd, 573 F.2d 698 (1st Cir. 1978); Commonwealth v. Scagliotti, 373 Mass. 626, 628 (1977); Commonwealth v. King, 374 Mass. 5, 14 (1977).
With near unanimity, courts have in fact rejected arguments like the plaintiffs', including that based on "privacy," for a constitutionally-protected right to have and use marihuana in the home. See, e.g., United States v. Drotar, 416 F.2d 914 (5th Cir. 1969), vacated on other grounds, 402 U.S. 939 (1971); State v. Murphy, 117 Ariz. 57 (1977); Laird v. State, 342 So. 2d 962 (Fla. 1977); Blincoe v. State, 231 Ga. 886 (1974); State v. Renfro, 56 Haw. 501 (1975); State v. Kells, 199 Neb. 374 (1977); State v. Anderson, 16 Wash. App. 553 (1976). The only contrary decision by an appellate court is that already mentioned, Ravin v. State, 537 P.2d 494 (Alas. 1975), 8 [**692] which, it seems, may rest largely on the explicit privacy right found in art. 1, Ã 22, of the Alaska Constitution, adopted in 1972. 9
8 The Ravin holding insulated from criminal sanction no more than possession of marihuana for private use by adults within the physical confines of the home. The limited reach of the Alaska privacy doctrine was further demonstrated in State v. Erickson, 574 P.2d 1 (Alas. 1978), holding that possession of cocaine for use in the home could be totally prohibited because of the danger that a user would leave home and commit violent crime while under the influence of the drug.
9 Attacks predicated on constitutional grounds other than substantive due process and privacy have been also generally rejected. In Leis we passed on and rejected challenges based on theories of equal protection and cruel and unusual punishment. These contentions, not pressed in the present case, would have less force today because marihuana is no longer classed in our legislation as a "narcotic" and the penalties for simple possession have been reduced. See the text below. See also the cases rejecting contentions that the marihuana laws prevent freedom of expression, threaten cruel and unusual punishment, and either deny equal protection or lack rational basis in distinguishing marihuana from alcohol and tobacco and treating it like true narcotics, e.g., United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973) (Feinberg, J.); United States v. Drotar, 416 F.2d 914 (5th Cir. 1969), vacated on other grounds, 402 U.S. 939 (1971); Louisiana Affiliate of Nat'l Organization for Reform of Marijuana Laws v. Guste, 380 F. Supp. 404 (E.D. La. 1974), aff'd, 511 F.2d 1400 (5th Cir.), cert. denied, 423 U.S. 867 (1975); People v. Aguiar, 257 Cal. App. 2d 597 (1968); State v. Kantner, 53 Haw. 327 (1972); State v. O'Bryan, 96 Idaho 548 (1975). See also State v. Bell, 136 Vt. 144 (1978). See generally Soler, Of Cannabis and the Courts: A Critical Examination of Constitutional Challenges to Statutory Marijuana Prohibitions, 6 Conn. L. Rev. 601 (1974); Bonnie & Whitebread, The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition, 56 Va. L. Rev. 971, 1125-1155 (1970).
An attack on equal protection grounds did succeed in People v. Sinclair, 387 Mich. 91 (1972); the court's decision that marihuana could not be rationally classified with other drugs led to new legislation reducing the penalties for its possession. See also State v. Leigh, No. 77-267, Fla. Cir. Ct., Dade County, Jan. 18, 1978 (46 U.S.L.W. 2425 ) (finds no rational basis for proscription of use and possession of marihuana in the home).
It may indeed be that our discussion has taken too wide a range. If marihuana is supposed with some reason to be harmful to users, the Legislature may claim a power to act against it even without identifying effects on others. Whereas in the First Amendment's realm of information and belief a State "cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts" ( Stanley, supra, 394 U.S. at 566), in matters of health and safety the State has long imposed varying constraints which seem directed to protecting individuals from themselves. This notion of governmental power is pervasive even though there is some idea also at work that in the end unhealthy individuals burden the community. See Commonwealth v. Howie, 354 Mass. 769, cert. denied, 393 U.S. 999 (1968), where we upheld the constitutionality of legislation requiring motorcyclists to wear safety helmets. 10 Much health and safety legislation aims not at battling communicable diseases but at saving people from their own folly. Many of the laws controlling impure and unsafe foods and drugs aim not so much at educating the consumer as at keeping the suspect items wholly beyond his reach. Just how far the [*71] State may go in these directions before it encounters a firm right to individual choice, we need not now try to say.
10 See State ex rel. Colvin v. Lombardi, 104 R.I. 28 (1968). But see People v. Fries, 42 Ill. 2d 446 (1969); American Motorcycle Ass'n v. Department of State Police, 11 Mich. App. 351 (1968). The individual interests which are urged here against the conventional police-power reasons for the ban on marihuana are in essence merely recreational. These interests surely have their place in the assortment of liberties protected by due process guaranties (cf. Selectmen of Framingham v. Civil Serv. Comm'n, 366 Mass. 547 ), but as they are relatively weak they do not overcome those conventional reasons or justifications. The total situation finds a place on the continuum of constitutional vulnerability (see note 4 supra) where judicial nullification of the proscriptive legislation appears unwarranted.
According to the present pattern of the criminal codes of the States of the Union, the possession of marihuana is illegal. 11 See Soler, Of Cannabis and the Courts: A Critical Examination of Constitutional Challenges to Statutory Marijuana Prohibitions, 6 Conn. L. Rev. 601, 716-723 (1974); also vol. 3 of Marijuana: A Study of State Policies and Penalties (National Governors' Conference, Center for Policy Research and Analysis) 98-104 (1977). Nevertheless the wisdom of such legislation (and of correlative laws as to distribution) remains under active and even vehement debate. The menace to health and safety is clearly not as grave as was once supposed and, some would say, is minor compared to the dangers of a number of substances not controlled or banned. See J. Kaplan, Marijuana -- The New Prohibition (1970). The enforcement problems and evils encountered under current law need not be dwelt on. Some countervailing benefits have been intimated above. These all sum up as matters for legislative deliberation and disposition, and it is worth noting that our Legislature has not been insensitive to the movement of public debate. Since the decision in Leis, the penalty [***17] for simple possession of marihuana [*72] has been reduced from up to three and a half years' imprisonment and a fine to six months' imprisonment and fine; for first convictions, probation is to be the normal sentence, with records sealed on completion of the term. G. L. c. 94C, Ã 34, as amended through St. 1975, c. 369. The medical, social, and law enforcement aspects of marihuana have been and can be studied by the General Court with an intensity and a breadth no court can readily approximate. See 1972 Mass. House Doc. No. 5896, cited above. It is for that branch of government to decide, perhaps at the plaintiffs' urging, whether the present statute attains to the best solution. 12
11 Subject to certain exceptions, the knowing possession of marihuana is a criminal offense under Federal law as well, 21 U.S.C. Ã 844(a) (1970), a proscription which would of course continue to apply to the plaintiffs even if they obtained their prayed-for declaration.
12 In the legislative forum, the plaintiffs could show that a growing number of States have removed personal possession from the felony category and now regard it as a minor offense. See, e.g., Colo. Rev. Stat. Ã 12-22-412 (12) (a) (Cum. Supp. 1976); 1977 N.Y. Laws c. 360 (Marihuana Reform Act of 1977). Further, there is advocacy of withdrawing all criminal sanctions from possession for personal use and from distribution of small amounts not for profit. Among the groups urging such decriminalization are the American Bar Association (ABA Summary of Action Taken by the House of Delegates, 1973, at 12-13), the National Commission on Marihuana and Drug Abuse (Marihuana: A Signal of Misunderstanding [Official Report, 1972]), and the National Conference of Commissioners on Uniform State Laws (Handbook of 1973 Proceedings at 186-187). See also Final Report of the Canadian Commission of Inquiry into the Non-Medical Use of Drugs (1970).
COMMONWEALTH v. LOWDER
SUPREME JUDICIAL COURT OF MASSACHUSETTS
432 Mass. 92; 731 N.E.2d 510; 2000 Mass. LEXIS 378
May 4, 2000
The text of former G. L. c. 278, Â§ 11, offers us more guidance. Between 1855 and 1979, G. L. c. 278, Â§ 11, provided in relevant part that the jury, "after receiving the instructions of [*96] the court, shall decide, in their discretion, by a general verdict, both the fact and the law involved in the issue, or they may, at their election, find a special verdict." 3 The court, by contrast, was to "superintend the course of the trials, decide upon the admission and rejection of evidence, upon all questions of law raised during the trials and upon all collateral and incidental proceedings, and . . . charge the jury." 4 It would be an understatement to say that the enactment of this language in 1855 was controversial. The language had originally been proposed [***9] as an amendment to the Massachusetts Constitution that failed in a close vote to win popular approval in 1853. The amendment was at least in significant part a response to the decision of this court in Commonwealth v. Porter, 51 Mass. (10 Met.) 263 (1845), which held that juries are obliged to obey the instructions of judges on questions of law. See Comment, The Changing Role of the Jury in The Nineteenth Century, 74 Yale L.J. 170, 177-183 (1964); M.D. Howe, Juries as Judges of Criminal Law, 52 Harv. L. Rev. 582, 608-610 (1939). In Commonwealth v. Anthes, 5 Gray 185 (1855), four of the six members of the court held that to the extent the statute conferred on the jury the power to determine questions of law against the directions of the court, the statute violated the State Constitution. See id. at 220, 222, 236 (Shaw, C.J., with whom Metcalf and Merrick, JJ., joined); id. at 251 (Bigelow, J.); Commonwealth v. Rock, 10 Gray 4, 5 (1857). Anthes made clear "that the jury in criminal trials have no rightful power to determine questions of law against the instructions of the court." Commonwealth v. Davis, 271 Mass. 99, 100, 170 N.E. 924 (1930) See Commonwealth v. Marzynski, 149 Mass. 68, 73, 21 N.E. 228 (1889).
3 The special verdict was eliminated in criminal cases when the Rules of Criminal Procedure were promulgated. See Reporters' Notes to Mass. R. Crim. P. 27, Mass. Ann. Laws, Rules of Criminal Procedure at 254 (Lexis 1997).
4 We quote from R. L. 1902, c. 219, Â§ 13, the version of the statute that was in force at the time of the codification of the General Laws. The differences between this version of the statute and older versions are not relevant to the decision of this case. There were no changes in the quoted portion between 1902 and 1979.
Chief Justice Shaw's opinion in Anthes distinguished sharply between questions of law and questions of fact: the former were for the judge to decide, the latter for the jury. See id. at 193-194, 198-199 (Shaw, C.J., with whom Metcalf and Merrick, JJ., joined). If there was any doubt after Anthes whether the sufficiency [*97] of the evidence to support a conviction was a question [***11] of law for the court to decide, that doubt was dispelled five years later in Commonwealth v. Merrill, 14 Gray 415 (1860), which made clear that judges have the power and the duty to direct verdicts in favor of criminal defendants when the evidence is insufficient to convict them. See id. at 418, citing Commonwealth v. Packard, 71 Mass. (5 Gray) 101, 103 (1855). Unlike its modern equivalent, the directed verdict at common law was not always a command that jurors were obliged to obey. 5 The decision in Merrill was perceived by some as a departure from this more modest understanding of the directed verdict. The decision was cited within a dozen years of its issuance as sole authority for the statement that, "although as a general proposition the sufficiency of the evidence is for the jury, yet, if it is found not to cover every part of the case, the court will, as matter of law, order the prisoner's discharge." [**516] 1 J.P. Bishop, Commentaries on the Law of Criminal Procedure Â§ 128, at 76-77 (2d ed. 1872). See id. at Â§ 977, at 600 & n.2, citing Packard, supra, and Merrill, supra. See also Comment, The Motion for Acquittal: [***12] A Neglected Safeguard, 70 Yale L.J. 1151, 1152 & n.8 (1961). By that time requests for directed verdicts in criminal cases were quite routine in Massachusetts. See, e.g., Commonwealth v. Certain Intoxicating Liquors, 105 Mass. 595, 598 (1870); Commonwealth v. Bakeman, 105 Mass. 53, 56-57, 60-61 (1870); Commonwealth v. Shepard, 83 Mass. (1 Allen) 575, 586-587 (1861). Cf. Oscanyan v. Arms Co., 103 U.S. 261, 263-264, 26 L. Ed. 539 (1880).
5 In the words of one commentator, the early directed verdict "was either instruction on the law or advice on the facts, or a mixture of the two. It was not a device for taking a case from a jury . . . ." W.W. Blume, Origin and Development of the Directed Verdict, 48 Mich. L. Rev. 555, 561 (1950). See Quincy, Reports of Cases in Juries of Superior Court of Massachusetts Bay (1761-1772) 382 & n.1, 556, 558, 564-565, 566 (1865 ed.); 2 L. Wroth & H. Zobel eds., Legal Papers of John Adams 404-406 (1965).
[***13] We said in a civil case that "[a] trial judge always has had power to direct a verdict provided the law required it." Bothwell v. Boston Elevated Ry., 215 Mass. 467, 477, 102 N.E. 665 (1917). This statement applies with equal force to criminal cases in light of the trial judge's historic power to determine questions of law for the protection of criminal defendants. Cf. Commonwealth v. Sheehy, 412 Mass. 235, 240, 588 N.E.2d 10 (1992). In other words, "the traditional understanding in our system" is "that the application of the beyond-a-reasonable-doubt standard to the evidence is not irretrievably committed to jury discretion." Jackson v. Virginia, [*98] 443 U.S. 307, 317 n.10, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). See Commonwealth v. Anthes, 71 Mass. (5 Gray) 185 (1855); Commonwealth v. Porter, 51 Mass. (10 Met.) 263 (1845). Cf. BMW of North Am., Inc. v. Gore, 517 U.S. 559, 573 n.17, 134 L. Ed. 2d 809, 116 S. Ct. 1589 (1996).
It was only in 1963 that G. L. c. 278, Â§ 11, was amended to provide that judges must enter verdicts for defendants in certain circumstances. See St. 1963, c. 569. [***14] The Commonwealth's argument accordingly fails to the extent it rests solely on the ground that judges do not have the power to direct a verdict apart from statute. Cf. Galloway v. United States, 319 U.S. 372, 389-395, 87 L. Ed. 1458, 63 S. Ct. 1077 (1943). The Commonwealth's argument fares no better to the extent that it rests on the notion that a judge's power to direct a verdict for the defendant manifests itself no earlier than the close of the Commonwealth's evidence. This notion lacks support in our case law as well as in reason. Cf. Oscanyan v. Arms Co., 103 U.S. 261, 265, 26 L. Ed. 539 (1880) ("Indeed, there can be, at this day, no serious doubt that the court may at any time direct a verdict when the facts are undisputed . . .").
In recent times we have repeatedly said without elaboration that a judge cannot be required to direct a verdict in a criminal case after the prosecutor's opening statement. See Rosenberg v. Commonwealth, 372 Mass. 59, 61, 360 N.E.2d 333 (1977); Commonwealth v. Sandler, 368 Mass. 729, 335 N.E.2d 903 (1975), and cases cited; Commonwealth v. Bader, 285 Mass. 574, 575, 189 N.E. 590 (1934). [***15] Compare Perry v. Carter, 332 Mass. 508, 509, 125 N.E.2d 780 (1955). If a judge lacked the power to direct a verdict after the opening, one might wonder why we did not say so in any of these cases. Cf. Commonwealth v. Dietrich, 381 Mass. 458, 460, 463, 409 N.E.2d 1288 (1980). This court had said decades earlier that a judge has the power to direct a verdict after an opening in a civil trial. See Hey v. Prime, 197 Mass. 474, 475, 84 N.E. 141 (1908); Stevens v. Nichols, 155 Mass. 472, 29 N.E. 1150 (1892); Howe v. Dickinson, 154 Mass. 494, 28 N.E. 910 (1891).
In Commonwealth v. Hare, 361 Mass. 263, 280 N.E.2d 138 (1972), we strongly suggested that a judge has the power to direct a verdict of acquittal after a prosecutor's opening. There we said that, "if the bill of particulars in the instant case in fact presents the total extent of the Commonwealth's proof, we think, without so deciding, that the allowance of a motion for a directed verdict might well be required at the conclusion of the Commonwealth's opening statement or at the close of the Commonwealth's case." Id. at 270. [***16] [**517] We made a like suggestion in Commonwealth v. Pope, 397 Mass. 275, 282 n.10, 491 N.E.2d 240 (1986), in which we said that a [*99] motion for a required finding of not guilty was "premature" when made at the close of the Commonwealth's opening statement. Accord Commonwealth v. Brusgulis, 398 Mass. 325, 333 n.15, 496 N.E.2d 652 (1986). We then said that "the judge need not have ruled on the motion until after the Commonwealth's evidence was closed" (emphasis added). Commonwealth v. Pope, supra at 282 n.10. 6
Counsel's right in criminal prosecution to argue law or to read lawbooks to the jury. 67 ALR2d 245.
District Attorney's Position and Responses
Massachusetts District Attorneys Unanimously Oppose Decriminalizing Marijuana Possession
In the Spring of 2008 the Massachusetts legislature must address an initiative petition that seeks to decriminalize the possession of small amounts of marijuana.  If the legislature does not pass the measure by May 7, 2008, it must appear on the ballot in November 2008. The eleven Massachusetts District Attorneys unanimously oppose this measure for the following reasons and urge the legislature and the general public to reject it.
1. The law we have now IS a sensible marijuana policy.
- The Commonwealthâs laws governing the possession of marijuana are fair and reasonable.
no, the law makes it criminal to smoke marijuana. this means that every adult who smokes marijuana is a criminal according to the law of massachusetts. this is a travesty of justice which should not stand the test of judicial rationality and most certainly not the test of jury justice.
2. Decriminalization of marijuana will increase its availability and use, and send a message to adolescents that smoking dope is normal behavior. â probably true that decriminalization of marijauna will increase its availability and use and will send a message not only to youth but to all citizens of massachusetts and beyond that smoking marijuana is not a crime.
- The District Attorneys ask Massachusetts parents, âDo you really want to encourage your kids to smoke dope?â â To which the answer is âNo, not necessarily. But I would like to be able to relate to my kids about drugs in a sensible way that they will understand and appreciate rather than rebel against.â
- Note that the proposed petition decriminalizes the possession of up to an ounce of marijuana; consequently, any person may carry and use marijuana at any time, thus ânormalizingâ its use. â subject to being banned like cigarettes places where the smoke would give offense.
- Decriminalization will reverse a recently documented positive trend in youth marijuana use:
- Past year use of marijuana among 8th graders significantly declined from 11.7 percent in 2006 to 10.3 percent in 2007, and is down from its 1996 peak of 18.3 percent.
- Annual prevalence of marijuana use has fallen by 33 percent among 8th-graders, 25 percent among 10th-graders, and 14 percent among 12th-graders since 2001.
- Disapproval of trying marijuana âonce or twice,â smoking marijuana âoccasionally,â or smoking marijuana âregularlyâ increased significantly among 8th-graders from 2006 to 2007, and remained stable for 10th- and 12th-graders for the same period.
- o Source: Infofacts: High School and Youth Trends, National Institute on Drug Abuse (NIDA), 2007.
-oppose jail statistics, numbers, aggregate sentences, cost to the state, cost to the families 3. Marijuana use is hazardous to public safety and public health
- There is a direct link between marijuana use and criminal activity
- A significant percentage of male arrestees test positive for marijuana:
- o 42% of all males arrested in Omaha
- o 41% of all males arrested in Chicago
- o 35% of all males arrested in San Diego
- + Source: Consortium of Alcohol & Substance Abuse Services, Drug Abuse Alert: Marijuana Can Mess You Upâ¦And Burn You Out.
- The criminal justice system is the largest single source of referral to drug treatment programs. (Note: This does not pertain exclusively to marijuana users.
- o Source: Marijuana Myths & Facts, The Truth Behind 10 Popular Misconceptions, Office of National Drug Control Policy, 2005.
- - there is no direct link, any more than the direct link between wearing pants and criminal activity.
- o 100% of all males arrested in Omaha
- o 100% of all males arrested in Chicago
- o 100% of all males arrested in San Diego
there is a high incidence of marijuana smoking among young rebellious males. this is strong reason not to criminalize smoking marijuana, which needlessly makes rebellious youth criminals.
- There is a direct link between marijuana use and motor vehicle crashes.
- Marijuana use impairs drivers, especially their coordination and balance, and alters a driverâs sense of time and distance.
- Smoking marijuana is often combined with drinking alcohol, which further impairs motor skills and increases the risk of accidents.
- o Source: U.S. Department of Health and Human Services, National Institute on Drug Abuse, Research Report Series â Marijuana Abuse. 2005.
- Even a moderate amount of marijuana impairs driving performance, particularly reaction time, and how often drivers checked the rear and side-view mirrors, side streets, the relative speed of other drivers.
- o Source: Marijuana Myths & Facts, The Truth Behind 10 Popular Misconceptions, Office of National Drug Control Policy, 2005.
- Data concerning shock-trauma patients involved in auto crashes reveals that 15% had been smoking marijuana, and another 17% had both marijuana and alcohol in their blood.
- o Source: Marijuana Myths & Facts, The Truth Behind 10 Popular Misconceptions, Office of National Drug Control Policy, 2005.
- Marijuana is the second most prevalent substance found in impaired drivers (alcohol is the most prevalent).
- o Source: DEA Street Smart Prevention Website, Driving While High on Marijuana.
- Marijuana users are 10 times more likely to be injured, or to injure others, in automobile crashes. A marijuana userâs risk of an auto crash is increased whether or not they use marijuana immediately preceding the crash.
- o Source: DEA Street Smart Prevention Website, Driving While High on Marijuana, citing a scientific study in New Zealand published in Addiction, 2005.
- According to U.S. government surveys regarding adolescent drug use patterns, approximately 600,000 high school seniors drive after smoking marijuana, and 38,000 seniors admit to crashing the car while under the influence of marijuana.
- o Source: DEA Street Smart Prevention Website, Driving While High on Marijuana.
- Surveys conducted by MADD and Liberty Mutual Insurance Company indicate that 41% of teenagers are not concerned to drive after smoking marijuana.
- o Source: DEA Street Smart Prevention Website, Driving While High on Marijuana.
- Statistics indicate that annually, approximately 36 million people drive under the influence of alcohol, marijuana, or another illegal drug.
- There is a direct link between marijuana use and public health
- Marijuana contains nearly five times more carbon monoxide and three times as much tar as regular cigarettes. Marijuana smoke contains 50% more cancer-causing materials than tobacco smoke.
- o Source: Consortium of Alcohol & Substance Abuse Services, Drug Abuse Alert: Marijuana Can Mess You Upâ¦And Burn You Out. U.S. Department of Health and Human Services, National Institute on Drug Abuse, Research Report Series â Marijuana Abuse. 2005.
- + Health effects of carbon monoxide: when inhaled, it decreases the bloodâs oxygen-carrying capacity, depriving the organs and muscles of oxygen. To try to get more oxygen, the heart has to work much harder, therefore increasing the risk of a heart attack or heart failure. Also, more red blood cells are produced, which causes the blood to become thicker and sticky, resulting in increased fatty deposits that lead to blood clots, strokes and heart attacks.
- + Health effects of tar: Tar is a thick, sticky mixture of chemicals that cause cancer. Tar irritates lung tissue and paralyses its natural cleaning mechanism, which leads to chronic chest/respiratory problems including lung cancer, emphysema and chronic pulmonary disease. Tar is also absorbed into the bloodstream and carried around the body.
- There is a direct link between marijuana use and workplace safety:
- The rate of industrial accidents among marijuana users is more than 50% higher than among non-users. The health and safety of coworkers and the general public are at risk when workers test positive for marijuana.
- o Source: How Does Marijuana Use Affect School, Work and Social Life?, National Institute on Drug Abuse (NIDA), 2005.
- A study among postal workers found that employees who tested positive for marijuana on a pre-employment urine drug test had 55 percent more industrial accidents, 85 percent more injuries, and a 75 percent increase in absenteeism compared with those who tested negative for marijuana use.
- o Source: How Does Marijuana Use Affect School, Work and Social Life?, National Institute on Drug Abuse (NIDA), 2005.
(1)The proposed measure provides that âpossession of one ounce or less of marihuana shall only be a civil offense, subjecting an offender who is eighteen years of age or older to a civil penalty of one hundred dollars and forfeiture of the marihuana, but not to any other form of criminal or civil punishment or disqualification. An offender under the age of eighteen shall be subject to the same forfeiture and civil penalty provisions, provided he or she completes a drug awareness program . . . â
(2)This initiative petition is sponsored by the Committee for Sensible Marijuana Policy, a political action group funded primarily by billionaire financier George Soros; the MA Office of Campaign and Political Finance indicates that Soros contributed $400,000 of the groupâs total revenues of $429,049 as of December 31, 2007. Some of the groupâs members are the same as those who, in the year 2000 under a different name, advocated for Ballot Question 8, which would have deferred many drug dealers, including some repeat offenders, into treatment instead of criminal sanctions. That measure was soundly defeated at the polls.
(3)Subject to the proponents gathering an additional 11,099 signatures. For a description of the ballot initiative process, see the website of Attorney General Martha Coakley at www.mass.gov/ago.