"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."
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.