The opinion of the court was delivered by: SAROKIN
Defendants seek to have the laws against the sale, possession and use of marijuana declared unconstitutional on the ground that those laws criminalize an activity which harms no one. They argue that the scientific evidence demonstrates that marijuana is not harmful, ergo, there should be no criminal penalties which flow from involvement with it.
A review of the scientific evidence submitted reflects a difference of opinion as to the harmful effects of marijuana. Congress is entrusted with the duty and responsibility of determining and categorizing what shall and shall not be a federal crime. It would be a violation of the separation of powers for the courts to make that determination. So long as there is a rational basis for the legislative action, the courts should not interfere.
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.
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:
The Court . . . does not "pick out particular human activities, characterize them as 'fundamental,' and give them added protection * * *." To the contrary, the Court simply recognizes, as it must, an established constitutional right, and gives to that right no less protection than the Constitution itself demands.
Shapiro v. Thompson, 394 U.S. 618, 642, 89 S. Ct. 1322, 1335, 22 L. Ed. 2d 600 (Stewart, J., concurring). Smoking marijuana receives no explicit or implicit constitutional protection. The act of smoking does not involve the important values inherent in questions concerning marriage, procreation, or child rearing. Moreover, its use predominantly as a "recreational drug" undercuts any argument that its use is as important as, e.g., use of contraceptives, see Eisenstadt v. Baird, discussed at p. 131 supra. As the Alaska Supreme Court noted in discussing a right to private use of marijuana, "few would believe they have been deprived of something of critical importance if deprived of marijuana." Ravin v. State, 537 P.2d at 502. Private possession of marijuana, not being what Justice Stewart called an "established constitutional right," cannot be deemed "fundamental."
Id. at 132-3. (footnotes omitted). See also Louisiana Affiliate of NORML v. Guste, 380 F. Supp. 404, 407 (E.D. La. 1974), aff'd, 511 F.2d 1400 (5th Cir.), cert. denied, 423 U.S. 867, 96 S. Ct. 129, 46 L. Ed. 2d 96 (1975) ("the right of plaintiff to possess marijuana in his own home can under no factual or legal interpretation be classified as fundamental or implicit in the concept of ordered liberty."); Crane v. Campbell, 245 U.S. 304, 308, 62 L. Ed. 304, 38 S. Ct. 98 (1917) ("the right to hold intoxicating ...