The evidence regarding marijuana may be inconclusive. Having discerned that a risk exists and that there is a basis for same, Congress has the right to act. The future may reveal that many persons were prosecuted and punished for an activity that was proved to be harmless. On the other hand, scientific evidence may establish prolonged use of marijuana to be of greater harm than now known or imagined. In the first instance, history will condemn Congress for the energy and money spent in the frustrating and expensive enforcement of these laws. In the second instance, the historians will praise the legislators for their tenacity and foresight in protecting society from itself. In either event, the decision has been made by the governmental body with the authority to do so, and the judiciary must abide by that decision and enforce its implementation.
There are many instances in which drugs deemed to be lawful and safe have reeked havoc years later on their users and their offspring. The action of Congress should not be reversed for erring on the side of caution in the public interest despite the clamor to legalize and decriminalize. In the face of dispute in the scientific community, Congress has the right to choose which opinion shall guide its legislative hand. Having chosen, this court has no right to say that it should have decided otherwise.
Defendants Jan Maas, Guillermo Bruges, Rodrigo Duran, Thomas Hemmerle, and Bruce Michael Kissal were arrested on August 27, 1982 on board the vessel the Margaret R. Mr. Maas was the master of the vessel and the four others were crew members. The arrest came after the vessel was boarded by Coast Guardsmen, allegedly for a documentation check, and marijuana was discovered on board. Approximately 543 bales of marijuana, weighing approximately thirteen tons, were seized from the vessel.
The grand jury returned an indictment in which defendants were charged with several offenses of possession of marijuana and importation of marijuana.
By this motion all defendants seek dismissal of the indictment on the ground that the ninth and tenth amendments to the Constitution prohibit the punishment of crimes without victims. Defendants contend that these amendments contain a right of the people to be free from criminal prosecution for possessing a substance having relatively harmless effects on the user, other persons or society, regardless of the intent of the possessor. Defendants further argue that since possession of marijuana is a fundamental right protected by these amendments, the government must show a compelling state interest to support legislation under its police power which infringes on this right. The construction of the ninth and tenth amendments urged in this motion is one that leaves the right to possess a substance whose effects on users is in doubt in the sovereign people, and only allows the government to exercise its power to criminalize possession of a substance when it is scientifically established that the substance is harmful. Defendants argue that scientific data shows marijuana to be harmless to the user and to society, and that the government is required to present a compelling state interest to justify laws that criminalize possession of marijuana. If the government does not make such a showing, defendants argue that this court must declare unconstitutional, as applied to marijuana, the federal statute that criminalizes possession of controlled substances; 21 U.S.C. § 841(a) (1). The defendants have submitted an appendix of materials supporting their position that marijuana is harmless.
The government contends that possession of marijuana is not a fundamental right guaranteed by the Constitution. The government further argues that it is abundantly clear from the scientific data that a serious and established body of thought exists in the scientific community that smoking marijuana is harmful. The government has submitted a recent report of the Food and Drug Administration in support of its position.
Initially, the court rejects the argument that use of marijuana is a fundamental right protected by the Constitution. The task of the court, when determining whether a right is fundamental so as to require legislation to be supported by a compelling state interest is to assess whether there is such a right explicitly or implicitly guaranteed by the Constitution. San Antonio School District v. Rodriguez, 411 U.S. 1, 33-4, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973). This court agrees with the conclusion reached in NORML v. Bell, 488 F. Supp. 123 (D.D.C. 1980):
Smoking marijuana does not qualify as a fundamental right, Ravin v. State, 537 P.2d 494, 502 (Alaska 1975) (dictum). In ascertaining whether a right is fundamental, a court must determine whether the right is "explicitly or implicitly guaranteed by the Constitution." San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 33-34, 93 S. Ct. 1278-1297, 36 L. Ed. 2d 16 (1973). On this issue, Justice Stewart once noted: