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Marijuana Politics
This page intentionally left blank
 Marijuana Politics
Uncovering the Troublesome History and
Social Costs of Criminalization

Robert M. Hardaway
Copyright © 2018 by Robert M. Hardaway
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted, in any form or by any means, electronic, mechanical,
photocopying, recording, or other­w ise, except for the inclusion of brief quotations in a
review, without prior permission in writing from the publisher.

Library of Congress Cataloging-­in-­P ublication Data

Names: Hardaway, Robert M., 1946–­author.

Title: Marijuana politics : uncovering the troublesome history and social costs of
criminalization / Robert M. Hardaway.
Description: Santa Barbara, California : Praeger, [2018] | Includes bibliographical
references and index.
Identifiers: LCCN 2017037270 (print) | LCCN 2017045707 (ebook) |
ISBN 9781440837074 (e-­book) | ISBN 9781440837067 (hard copy : alk. paper)
Subjects: LCSH: Marijuana—­Political aspects—­United States. | Marijuana—­L aw and
legislation—­United States. | Marijuana abuse—­United States. | Drug legalization—­
United States.
Classification: LCC HV5822.M3 (ebook) | LCC HV5822.M3 H367 2018 (print) |
DDC 362.29/55610973— ­dc23
LC rec­ord available at https://­lccn​.­loc​.­gov​/ ­2017037270
ISBN: 978-1-4408-3706-7 (print)
978-1-4408-3707-4 (ebook)
22 21 20 19 18   1 2 3 4 5
This book is also available as an eBook.
Praeger
An Imprint of ABC-­CLIO, LLC
ABC-­CLIO, LLC
130 Cremona Drive, P.O. Box 1911
Santa Barbara, California 93116​-­1911
www.abc​-­clio​.­com

This book is printed on acid-­free paper

Manufactured in the United States of Amer­i­ca

 Dedicated to
Judy Swearingen Trejos
This page intentionally left blank
 Contents

Preface ix

Acknowl­edgments xi

Chapter 1 Marijuana: Politics, Partisanship,

and Demagoguery 1
Chapter 2 The Victimless Crime F
­ amily 23
Chapter 3 Lessons from the Prohibition Era 42
Chapter 4 Marijuana as Medicine 65
Kyle Bershok Ames
Chapter 5 A Brief History of Cannabis Use
and Regulation 75
Kyle Bershok Ames
Chapter 6 Global Marijuana Regulation 115
Kyle Bershok Ames
Chapter 7 Recent Legalization Developments 140
Taylor Hart-­Bowlan and
Kyle Bershok Ames
Chapter 8 The Conflict between Federal and State
Marijuana Law 160
Taylor Hart-­Bowlan
Chapter 9 Conclusion 176
viiiContents

Notes 179

Bibliography 237

Index 273

About the Author and Contributors 297

 Preface

In 2003, Praeger Publishers, now a part of ABC-­CLIO, published my book

No Price Too High: Victimless Crimes and the Ninth Amendment, which set
forth the history of marijuana criminalization and provided an overview
and analy­sis of then-­current laws regulating its use in the context of the
Ninth Amendment of the U.S. Constitution. Since that time, many states
have legalized marijuana use for medical purposes, and ­others have also
legalized its use for recreational purposes. As of the publication date of
this book, 29 states have legalized the former and eight the latter.
­Because of the many ­legal developments that have occurred since
2003, this book was conceived as an update of this earlier work, with par­
tic­u­lar attention to the most recent laws representing the accelerating
trend t­oward legalization that occurred during the 2016 election in the
form of popu­lar initiatives and referenda. For this reason, much of the
history and ­legal developments in the area of marijuana law that occurred
before 2003 has been carried forward from the earlier work, and in some
cases entire relevant sections have been reproduced, often verbatim, in
the pages that follow. This has been made pos­si­ble by the fact that I wrote
the previous work and the copyright of No Price Too High is now held by
ABC-­CLIO, the publisher of this book.
As noted in the previous work’s foreword by former New Mexico Gov-
ernor Gary Johnson, “The title of No Price Too High sarcastically implies
that, to our law and judicial system, ­there is ‘no price too high’ to make
something illegal, even if that only makes the prob­lem worse. Using
extensive references, Hardaway proves that the drug prob­lem has only
increased since its criminalization.”
Certainly the premise of that title has not changed since 2003, as soci-
ety continues to be afflicted by the horrifying spectacles of tens of thou-
sands of murders committed by drug cartels, mass graves, extravagant
xPreface

expenditure of resources diverted from rehabilitation to enforcement, the

release of thousands of violent criminals from our prison systems to make
room for drug offenders, the de facto diversion to and financing of or­ga­
nized crime, an increase in drug use, and not least the corruption of
government—­all on the purported rationale of keeping ­people from pos-
sibly jeopardizing their health by using marijuana, even for medicinal
purposes.
Likewise, federal Judge John L. Kane wrote in a separate foreword to
my previous work: “We are indebted to professor Hardaway for bringing
together the common effects of (drug crimes) . . . ​a nd demonstrating
quite persuasively that such laws produce unintended consequences far
more damaging to our society than the defined crimes.”
Although my name appears as author, this book is in large part the
product of a collaborative effort of a small army of research assistants,
students at the University of Denver’s Sturm College of Law. Their names
appear in the acknowl­edgments. Two of them—­Kyle Bershok Ames and
Taylor Hart-­Bowlan—­were particularly productive, and their contribu-
tions not only to under­lying research but also to drafting several of the
chapters herein are recognized by their bylines in t­ hose chapters.
A final note of confession. I myself have never even tried or experimented
with marijuana, and have never had the slightest inclination to do so.
Although this may seem to set me at a disadvantage in writing a book on
marijuana, I believe it has allowed me to be more objective by focusing on
the societal, rather than personal, effects of marijuana criminalization.
 Acknowl­edgments

This book would not have been pos­si­ble without the contributions of
many dedicated p ­ eople. First, ­there ­were the contributions of my two pri-
mary research assistants, Kyle Bershok Ames and Taylor Hart-­Bowlan,
both outstanding students at the University of Denver’s Sturm College of
Law, whose contributions w ­ ere so substantial they are named as authors
of Chapters 4 through 6, and 7 and 8, respectively.
The proj­ect was supported by a small army of dedicated law students,
who enthusiastically volunteered for research assistant duties, meticu-
lously scouring the libraries and databases as well as checking sources
and citations. For this demanding, tedious, and labor-­intensive work they
deserve the most honorable mention: Josephine Bunker, Lindsay Gardner,
Nicholas Gross, Michael Hartman, Megan Herr, Greg Huckaby, Caterina
Lovell, Daniel Woodbridge, Zachary Schiffler, and Sahin Singh, who assisted
Taylor Hart-­Bowlan; and Mathew Spangler, Gracen Short, Mark Kollasch,
Christopher Barbera, Hunter Heidrich, and Lindsey Idelberg, who assisted
Kyle Bershok Ames.
Fi­nally, much thanks to the entire staff at the University of Denver’s
College of Law, who labored diligently assisting in the preparation of the
manuscript, and to Jessica Gribble of ABC-­CLIO, whose scrupulous pri-
mary editing helped tighten the manuscript to a more readable size.
This page intentionally left blank
 CHAPTER ONE

Marijuana: Politics, Partisanship,

and Demagoguery

He who knows only his side of the case, knows l­ittle of that . . . ​
(but) wrong opinions and practices gradually yield to fact and
argument.
­—John Stuart Mill1

­ very year, more than 480,000 Americans die as a result of using

E
tobacco.2 In 2014, alcohol use resulted in the deaths of 88,000 Ameri-
cans,3 including 9,967 ­people killed in alcohol-­related traffic collisions.4
Alcohol was used before 32 ­percent to 50 ­percent of all hom­i­cides5 and
was a major f­actor in more than 33 ­percent of sexual assaults,6 nearly
25 ­percent of violent crimes,7 and 66 ­percent of intimate vio­lence.8
According to the Cato Institute, when ­these figures are translated into
deaths per 100,000 users, “tobacco kills 650, alcohol 150, heroin 80,
cocaine 4.”9 To date, ­there have been no reports of marijuana as the pri-
mary cause of death.10
If a Martian ­were to visit the United States tomorrow and be shown
­these statistics, he might be surprised to learn that of three substances—­
tobacco, alcohol, and drugs—­only drugs, including marijuana, are crimi-
nalized. The Martian might also be surprised, indeed bewildered, to learn
that even though alcohol and tobacco ­were ­legal substances and even sub-
sidized, American society was willing to lose $180 billion annually,11
arrest and incarcerate hundreds of thousands of American citizens for
drug offenses (further overcrowding prisons already beyond capacity and
2 Marijuana Politics

necessitating the release of offenders, many of them violent),12 conduct

thousands of wiretaps, impose sentences up to and including life impris-
onment without parole for possession of less than a pound and a half of
drugs,13 forfeit billions of dollars of potential tax revenues to or­ga­nized
crime,14 and tolerate the corruption and undermining of the po­liti­cal
system—­all to implement a drug war that has seen greater drug use ­after
criminalization than before.
We might first be tempted to try to explain to the Martian that the
extravagant h ­ uman, social, and financial costs of criminalization (includ-
ing the thousands of illegal drug-­related murders and assaults) are fully
justified in order to keep some Americans from possibly jeopardizing
their health. But when we concede that the harm done to most of ­those
Americans who use illegal drugs resulted more from the effects of drug
prohibition (including contaminated drugs and unsterilized ­needles) than
from the drug itself, the Martian might express even greater amazement.
In order not to completely bewilder the Martian, we would prob­ably
not dare to advise him of such additional facts as that over a fifth of all
property crime (exceeding $4 billion in 1974) was committed by addicts
seeking money for drugs made artificially expensive by prohibition (the
profits ­going to finance or­ga­nized crime and to corrupt public officials).

A 1980 study (Ball et al., 1980) found that a random sample of 243
addicts from the streets of a large U.S. city admitted to committing 473,738
offenses over an 11-­year period. This is consistent with the previously
cited study of state prison inmates done in 1974 (Barton, 1974), and a fol-
low-up study by [the Law Enforcement Assistance Administration] done in
1978. This study showed that 55 ­percent of prisoners admitted to being
­under the influence of drugs or alcohol while committing the crime for
which they w
­ ere imprisoned.15

Should we dare to advise the Martian, we might attempt to lessen the

strain on credibility by simply stating the moral conviction that no price
is too high to pay to protect t­ hose Americans who use illegal drugs from
­doing what they want to do by getting high and possibly jeopardizing
their own health. (One observer has whimsically remarked that whoever
­those privileged Americans are, they have launched more ships, and
caused the mobilization of more resources, than the legendary Helen of
Troy.)
Although Amer­i­ca’s marijuana laws might be difficult to explain to a
Martian, American policy makers in the past have had l­ittle difficulty
explaining them to American voters, the majority of whom overwhelmingly
Marijuana: Politics, Partisanship, and Demagoguery 3

supported such laws—­until recently. By 2016, a majority of Americans

supported legalization of marijuana.16 The fact that 49 ­percent of Ameri-
cans have tried marijuana17 (including a former president and former
vice president of the United States, and a former speaker of the House of
Representatives)18 and that 24.6 million Americans have used illegal
drugs in the past month19 fi­nally appears to have affected the degree of
support for legalization.
In fact, as the chapters within w­ ill reveal, the vast majority of research-
ers and scholars who have addressed the issue of the criminalization of
victimless crimes have concluded that the costs of criminalization are too
­great and the results not only minimal but actually counterproductive to
the professed goal to be achieved.20 Indeed, the research for this book
revealed 10 times more scholarly articles advocating marijuana legaliza-
tion and prostitution than articles opposing them.
Professor James Inciardi of the University of Delaware, one of the few
American academics to oppose drug legalization, recently complained
that former federal “drug czar” William Bennett “has virtually no [schol-
ars] helping him” in opposing drug legalization.21 Ethan Nadelmann, a
Prince­ton professor, complains that it is getting harder and harder to find
opponents to drug legalization to debate him.22
But politicians hardly need the support of academics to curry the f­ avor
of the electorate in opposing drug law reform. Simplistic slogans are far
easier for politicians to dispense to constituents than the results of exten-
sive empirical and scholarly research, and comparative studies. In 1994,
former President Clinton was obliged to fire his surgeon general, Jocelyn
Elders, for, among other offenses, suggesting that the scholarly debate
over drug reform and legalization be openly discussed as a m ­ atter of pub-
lic policy. Former secretary of state ­ under President Reagan, George
Schultz, gave a speech on October 7, 1989, in which he advocated that,
“we need at least to consider and examine forms of controlled legalization
of drugs.”23 Secretary Schultz was not fired for this sin, but he ­later added,
“I find it very difficult to say that. Sometimes at a reception or cocktail
party I advance t­hese views and p ­ eople head for somebody e­lse. They
­don’t even want to talk to you.”24
So po­liti­cally sensitive has the issue of drug legalization become that
when a congressional fact-­finding committee was convened in 1979 to
look into the properties of cocaine, a congressman interrupted a testify-
ing expert who was about to volunteer his opinion about drug legalization
by snapping, “I ­won’t ask you that.”25 The risk that an expert’s opinion on
drug legalization expressed at a congressional hearing might be reported
in the press was apparently too ­great for the congressman.
4 Marijuana Politics

In view of current public perceptions, the evolution of sound policy for

marijuana legalization may take as long as or even longer than the evolu-
tion of the legalization of alcohol and tobacco. T ­ oday’s generation may
take the legalization of liquor and tobacco for granted, but it should be
recalled that the prospects for the legalization of liquor ­were once consid-
ered to be far more remote than the prospects for drug legalization are
­today. The 18th Amendment to the Constitution, which helped to estab-
lish national prohibition of alcohol, passed on a wave of popu­lar support.
In 1930, Senator Morris Shepherd (D-­Tex.) scoffed at t­hose who urged
alcohol legalization by asserting, “­There is as much chance of repealing the
[18th] Amendment as ­there is for a hummingbird to fly to the planet Mars
with the Washington Monument tied to its tail.”26 Similar pronouncements
­were made with regard to the legalization of tobacco by officials in ­those
16 states that prohibited the use of tobacco before 1922.27 Nevertheless,
the path ­toward legalization of alcohol and tobacco in ­those states that
banned its use was long, arduous, and completed only when the most
obstinate opponents w ­ ere fi­nally convinced that the costs to society of
prohibition w ­ ere too high and the rewards of criminalization to or­ga­nized
crime too g­ reat.
Unlike the end of federal alcohol prohibition, which took place sud-
denly with the ratification of the 21st Amendment in 1933, the legaliza-
tion of marijuana is likely to occur more gradually but inexorably as state
­after state ­either legalizes or decriminalizes the medicinal and recreational
use of marijuana. As of the writing of this book, Alaska, California, Colo-
rado, Maine, Mas­sa­chu­setts, Nevada, Oregon, Washington, and the Dis-
trict of Columbia have legalized the recreational use of marijuana, and
another 20 states have decriminalized its use or approved its use for some
medical purposes.28 Overhanging this liberalized state regulation of mari-
juana, however, is federal law; as of the date of this book, federal law contin-
ues to criminalize all use of marijuana, both recreational and medicinal.29
Before we address ­these ­legal, economic, and social conflicts that arise
between federal and state law in states where marijuana is legalized, an
overview of the unsuccessful constitutional challenges to marijuana laws
is in order.
The question remains, how do we explain the American policy on vic-
timless crimes, of which drug policy—­specifically, marijuana policy—is
but one? Many books and articles have been written on the social effects
of the enforcement of laws against other victimless crimes such as prosti-
tution, alcohol consumption, and gambling. All three of t­hese societal
prob­lems have been vigorously debated and w ­ hether the criminalization
of each serves the interests of society. However, few of the scholarly and
Marijuana: Politics, Partisanship, and Demagoguery 5

popu­lar works now available have looked at all three prob­lems from a
common perspective. We therefore must compare the policy rationales
for the criminalization of marijuana with the rationales for the prohibition
of the use of tobacco, contraception, homosexual conduct, alcohol, prosti-
tution, and gambling with a view ­toward identifying a common rationale
for all of them and then evaluating that common rationale in terms of its
economic and social consequences. On the issue of decriminalization,
proponents and opponents alike usually begin with a general discussion
of the alleged harm each victimless crime inflicts on society. We take a
quick peek at some of them ­here while reserving for the next chapter a
more comprehensive comparison with alcohol prohibition in Chapter 3.
For some time, the policy of the U.S. government with regard to drug use
is that governmental actions to intervene on our behalf help protect us
against ourselves.30 In fighting the war on drugs, the U.S. government has
spent billions of dollars, but this staggering price does not even reflect a
far greater price being paid in the sacrifices of our constitutional rights. The
war on drugs has severely eroded every­one’s Fourth Amendment rights,
with the Supreme Court’s holdings in this area commonly known as “the
drug exception to the Fourth Amendment.”31 ­These eroded rights include
the relaxation of criteria that must be satisfied by law enforcement officers
and courts to secure a search warrant. The Supreme Court has also permit-
ted the issuance of search warrants based on anonymous tips and tips from
in­for­mants, some of whom have proven corrupt and unreliable;32 permit-
ted warrantless searches of fields, barns, and private property near a
residence;33 permitted warrant-less surveillance of a home;34 lowered the
permissible ceiling for aerial warrant-less searches to 400 feet; and upheld
the use of evidence obtained u ­ nder the color of defective search warrants
on the ground the officers executing the warrant w ­ ere acting in “good faith.”35
Other cases can be cited that also show how the Court has expanded the
war on drugs at the expense of individual rights. ­These examples of gov-
ernment action clearly show how courts at both the state and federal lev-
els ­w ill allow governments to act paternalistically when the government
is at war, w ­ hether it be with another sovereign nation or with its own
­people. As long as the fight against drugs is termed the “war on drugs,”
the government, with the aid of the courts, w ­ ill continue to violate, erode,
and simply abandon individuals’ liberty and autonomy. Recent history
should be a dire warning against both the soundness of this rhe­toric and
the kinds of reactive mea­sures it allows the government to pursue.36
With this erosion of Fourth Amendment rights in the realm of drugs
having been solidified by the government and courts of this country, we
must look to other constitutional sources for protection from government
6 Marijuana Politics

intrusion into an individual’s privacy or autonomy. This constitutional

source is the Ninth Amendment, which stipulates that the “enumeration
in the Constitution, of certain rights, ­shall not be construed to deny or
disparage o­ thers retained by the ­people”37 As Associate Justice Arthur
Goldberg is quoted as saying in Griswold:

The Ninth Amendment simply shows the intent of the Constitution’s

authors that other fundamental personal rights should not be denied such
protections or disparaged in any other way simply ­because they are not
specifically listed in the first eight constitutional amendments.38

Justice Goldberg’s comments and the noted historical review of the

Ninth Amendment clearly show that Madison and the found­ers under-
stood the importance of individual privacy and personal autonomy. Thus,
it is not surprising that James Madison described protection of the diversity
of ­human faculties as “the first object of Government.”39 This objective of
government protecting individual rights and personal autonomy is pre-
cisely why the Ninth Amendment is part of the Constitution—it protects
the diversity of ­human faculties. The government best protects t­hese
rights by not allowing itself to become involved in them.
The government has no place in determining an individual’s self-­
definition; this princi­ple is perhaps the most basic tenant of a republic
style of government. In certain areas of the privacy realm, the courts have
supported this notion and refused to allow the government to interfere.
However, this being said, the courts have limited their support of this
impor­tant princi­ple to certain realms of privacy—­most notably in the
context of sexuality40 but also in limited circumstances of other impor­
tant privacy ­matters41—­but it is at this point that the Court has drawn the
line. ­There can be no doubt that the privacy rights just discussed and that
have been awarded protection from government intrusion by the courts
play a major role in an individual’s self-­definition. The choices an indi-
vidual makes when relating to m ­ atters of sexuality between oneself and
another consenting adult are intertwined with the concept of self-­
determination to the point that the government cannot and should not
play any role. However, the government continues to interfere in certain
aspects of this privacy right.42
Another aspect the Court has protected is that of f­ amily rights and the
privacy m ­ atters that relate to them. The h ­ ouse­hold you are raised in, the
values you are taught, and the education that is chosen and provided for
you are basic building blocks of self-­determination, and the courts have
Marijuana: Politics, Partisanship, and Demagoguery 7

recognized and protected t­hese rights from government intrusion as

well. The courts have drawn a line at this point in restricting govern-
mental interference with the concept of an individual’s self-­determination.
The privacy doctrines supported by the courts u ­ nder the guise of sub-
stantive due pro­cess and the limited application of the Ninth Amend-
ment go no further than the rights just discussed. But t­here is far more
to the concept of self-­determination than the limited rights protected
by the courts, and the Ninth Amendment is the vehicle that provides
protection for t­ hese other rights that are fundamental to an individual’s
self-­determination.
An individual’s decision to use drugs is one of ­these rights that go to
the heart of the concept of self-­determination. Many other rights are
included in the self-­determination realm, but most of them are less con-
troversial, such as the choice of what or how much food to eat or w ­ hether
to eat at all, and therefore receive l­ittle attention. The point to be made,
however, is that the choice one makes about how to affect one’s level or
state of consciousness and the choice one makes in eating habits that
affect one’s body and appearance should be treated as one and the same.
Provided the choice only affects the individual, ­there is no room for the
government or society to step in and make ­these choices for the individual.
This is the most basic and fundamental princi­ple of the self-­determination
concept, which includes an individual’s right to privacy and autonomy.
The princi­ple of the right to privacy is not freedom to do par­tic­u­lar acts
determined to be fundamental through some ever-­progressing normative
lens. It is the fundamental freedom not to have one’s life totally deter-
mined by a progressively more normalizing state.43 The Supreme Court is
aware of this threat. Consider the words of Associate Justice Robert H.
Jackson in West ­Virginia State Board of Education v. Barnette.44 During World
War II, the Court held that a law requiring school ­children to salute the
flag and profess allegiance to the United States was unconstitutional. As
Justice Jackson argued:

Strug­
gles to coerce uniformity of sentiment in support of some end
thought essential to their time and country have been waged by many
good as well as evil men. . . . ​A s first and moderate attempts to attain unity
have failed, t­hose bent on its accomplishment must resort to an ever-­
increasing severity. . . . ​Ultimate futility of such attempts to compel coher-
ence is the lesson of ­every such effort from the Roman drive to stamp out
Chris­tian­ity . . . ​down to the fast failing efforts of our pres­ent totalitarian
enemies.45
8 Marijuana Politics

The Barnette holding and other Supreme Court decisions are clear
examples of the Court recognizing the prob­lems of standardization and
paternalism through intrusive government actions. This idea was clear in
1943 when Barnette was deci­ded and has continued in recent years in
Roberts v. United States Jaycees,46 quoting the “ability in­de­pen­dently to
define one’s identity that is central to any concept of liberty,” 47 and the
dissent in Bowers v. Hardwick claiming the right to privacy is a right to
“self-­definition.” 48 Even though the Court recognizes the prob­lem, it has
done l­ittle to fashion a solution.
The final argument in support of the self-­determination concept and
its relationship to drug use is that of pervasiveness. In a 1992 book titled
Our Right to Drugs: The Case for a F ­ ree Market,49 Professor Thomas Szasz
concludes that the pervasiveness argument supports the self-­determination
theory in the privacy and autonomy situations relating to drug use. Pro-
fessor Szasz also notes that the Supreme Court in its historical privacy
case of Griswold v. Connecticut50 accepts the pervasiveness theory, and the
concurring opinion by Associate Justice Arthur Goldberg in fact relies
heavi­ly on it. In Griswold, Goldberg refused to find the state’s argument
regarding anti-­extramarital relations as the basis for the law as compel-
ling in light of “admitted widespread availability to all persons in the state
of Connecticut, unmarried as well as married, of birth-­control devices for
the prevention of disease. . . .” 51 This widespread availability and implied
public demand supports the Connecticut public’s recognition of a right to
nonprocreational sexual relations as a pervasive right, a right that a signifi-
cant portion of con­temporary society believes is inextricably connected
with the inherent dignity of the individual.52 Based on this recognition, Pro-
fessor Szasz provides two considerations that the right to self-­determination
is inherent in the right to drugs, a pervasive right recognized by society.
In the first consideration, the relationship between the exercise of an indi-
vidual’s f­ ree w
­ ill to use drugs and the concepts of autonomy, dignity, and
moral responsibility provides support for this claim. According to Profes-
sor Szasz, this recognition of the relationship satisfies the criterion of per-
vasiveness.53 The second consideration comes from the data on drug use
in the United States, which provides ample support for the significant
recognition of a right to drugs. Both casual drug users and addicts alike
are understood to be asserting a right to drugs by their acts of defying
current prohibitionist laws.54 The 21 million to 25 million Americans who
have used cocaine and the 70 million Americans who have used some
type of illegal drug can be counted in calculating the pervasiveness of this
recognition of self-­determination and the right to drugs.55 Just as the
widespread availability of contraceptives in Connecticut in 1964 (despite
Marijuana: Politics, Partisanship, and Demagoguery 9

the state’s ban on all forms of contraceptives) was viewed as an argument

significant for the claim that the right to nonprocreational sexual relations
was a pervasive right, so too can we view the widespread availability and
use of controlled and illegal drugs as significant support for the claim that
a larger portion of society recognizes that the right to drugs is a funda-
mental right.56
The concept or theory of the “harm princi­ple” is traced back to John
Stuart Mill’s classic essay “On Liberty” in which he phrases the concept
as the “harm to ­others” princi­ple.57 According to Mill’s theory, individu-
als may locate within their personal domain decisions that are “self-­
regarding,” meaning decisions that primarily affect only the interests of
the decision maker. Beyond this sphere of personal domain are the deci-
sions considered other-­regarding, which is to say decisions that affect the
interest of other persons. The other-­regarding acts have consequences on
the public and can be regulated, therefore the right to self-­determination
is not absolute and only ­those self-­regarding acts should be allowed in a
republic style of government. ­There is no fine line between ­these two
concepts, as is such in many realms of law, theory, and policy. However,
simply b­ ecause ­there is a gray area, that alone is not enough to discard
the theory in its entirety. Professor Joel Feinberg,58 in his book titled
Social Philosophy,59 provides an example of an individual performing self-­
regarding acts. Professor Feinberg expands Mill’s theory relating to the
harm princi­ple in that no one should be punished simply for being
drunk but a policeman should be punished for being drunk on duty.60
Feinberg states:

A hard working bachelor who habitually spends his eve­nings hours drink-
ing himself into a stupor, which he then sleeps off, rising fresh in the
morning to put in another hard day’s work. His drinking does not directly
affect ­others in any of the ways of the drunken policeman’s conduct. He
has no ­family; he drinks alone and sets no direct example; he is not pre-
vented from discharging any of his public duties; he creates no substantial
risk of harm to the interests of other individuals. Although even his pri-
vate conduct ­w ill have some effects Mill would call “indirect” and “remote.”
First, in spending his eve­nings the way he does, our solitary tippler is not
­doing any number of ­things that might be of greater utility to ­others. In
not earning and spending more money, he is failing to stimulate the econ-
omy (except for the liquor industry) as much as he might. Second, he fails
to spend his eve­ning time improving his talents and making himself a bet-
ter person. . . . ​Third, he may make ­those of his colleagues who liked him
sad on his behalf. Fi­nally, to ­those who know of his habits he is a bad
example.61
10 Marijuana Politics

This example from Professor Feinberg clearly shows an individual

committing self-­regarding acts. As noted, the “indirect” or “remote” effects
on outsiders are minimal and do not change the fact that the actions of
the individual do not violate the “harm to ­others” princi­ple cited by Mill.
The basic contention of this concept is to examine the relationship
between the individual and the state and determine who should make the
decisions regarding the best interests of an individual. Mill himself
answers this question by noting that even when the state acts in a good
faith, the action is self-­defeating; an adult’s own good is “best provided for
by allowing him to make his own means of pursuing it.” 62 In essence, the
harm princi­ple allows the individual the right to define oneself even
in opposition to widespread, traditional, “normal” values,63 assuming the
defining acts are self-­regarding.
The “right to be let alone” that has become a standard phrase in privacy
jurisprudence should only be circumscribed by the state when the harm
princi­ple has been v­ iolated. However, this is not the case ­today, and u
­ nder
the guise of the police power the state violates this “right to be let alone”
and the individual receives l­ittle protection from the courts. A few courts
and some judges have recognized this prob­lem but remain the minority
throughout the judicial system. In 1998, the Hawaii Supreme Court in
State v. Mallan64 held that the right to possess marijuana is not protected
­under the right to privacy by the state constitution. In his dissent, Justice
Levinson wrote, “Legislative enactments intended to compel purely per-
sonal safety, health, morals or welfare, ­under pain of criminal punish-
ment, constitute unreasonable exercises of the police power; and such
legislative enactments are therefore unconstitutional.” 65 Levinson rejects
the regulation of personal, private conduct ­under the state’s police power
absent a showing that harm or likelihood of harm to ­others would occur.66
The other boundary mentioned by Levinson in his dissent is that once
the right to privacy is implicated, the protection afforded to the individual
can only be impinged upon when the state demonstrates a compelling
interest to do so using the least restrictive means pos­si­ble.67 This pro-
posed standard rejects the rationale basis standard of review and would
require the state to show far more to demonstrate a compelling interest.
The point being, legislation that interferes with an individual’s right to
privacy by prohibiting activity that does not violate the harm rule should
be considered unconstitutional. Although the Mallan case was primarily
focused on the privacy article of the state constitution of Hawaii, the argu-
ment can be made that the Ninth Amendment supports this contention at
the federal level.
Marijuana: Politics, Partisanship, and Demagoguery 11

The harm princi­ple, paternalism, self-­determination, and personhood

are all theories about an individual’s autonomy, personal liberty, and right
to privacy. ­These theories share a common theme: the state should play
no role in certain ­matters pertaining to individual activity. The idea that
the state knows what is best for individuals and should be allowed to gov-
ern u ­ nder this princi­ple goes against the ideals of our found­ers and their
beliefs in natu­ral law. For the state to do so would be an “almost un-­
American rationale for any type of government activity.” 68 The framers
explic­itly acknowledged that individuals possess certain “unalienable
rights” 69 that are not enumerated in the text of the Constitution and are
not contingent on the relationship between individuals and the federal
government.70
By implementing the harm princi­ple in our nation’s legislative and
judicial branches of government, the rights of individuals to maintain
their lives by their own standards w ­ ill once again be a real­ity. This
­government was founded on the princi­ples of natu­ral law; for the past
100 years, however, it has strayed from this foundation and created the
current system of overreaching legislatures with the mindset that the few
know what is right for the masses. The harm princi­ple in no way is a
blank check to allow society to do as it pleases; it is simply a check on
government to re­spect the individual’s autonomy, liberty, and right to pri-
vacy. Drug use, for example, needs to be regulated to a certain point. Much
as with alcohol and tobacco, t­here must be age limits, quality standards,
and restrictions on when and where ­these products may be used. The war
on drugs has failed and ­w ill continue to fail; criminalizing drug use is not
the answer. The governmental interest in the well-­being of the drug user
can be served best by controlling the quality and labeling of drugs and by
increasing the availability of drug treatment to t­hose seeking such assis-
tance.71 ­There ­w ill always be opposition to drug use, simply ­because it is
viewed as immoral, but this alone should not cloud the judgments of the
legislature and the courts. In Bowers v. Hardwick,72 Associate Justice Harry
Blackmun quoted the following in his dissent: “Reasonable ­people may
differ about ­whether par­tic­u­lar sexual acts are moral or immoral, but we
have ample evidence for believing that ­people w ­ ill not abandon morality,
w ill not think any better of murder, cruelty and dishonesty, merely
­
­because some private sexual practice which they abominate is not pun-
ished by the law.” 73 The correlation can be made to the issue of drug use,
and the moral disagreements of certain sections of society should not
carry the day.
12 Marijuana Politics

Effects on Law Enforcement

Randy Barnett, a former prosecutor assistant state’s attorney for Cook
County, Illinois, recently described the devastating effect the so-­called
war on drugs, and particularly marijuana, had on the prosecution of vio-
lent crimes in his district. In 1979, before the crackdown on drug users,
he had a caseload of between 125 and 135 cases. With such a relatively
low caseload, he was able to take defendants charged with the most vicious
and violent crimes to trial, offering only ­those plea bargains that involved
fair and correct sentences for ­those crimes. When the war on drugs set a
new priority of cracking down on drug users, however, he saw his case­
load skyrocket to more than 400 annually. He then had no choice but to
offer “giveaway” plea bargains even to the most vicious of the violent
offenders. He l­ater concluded, “­There is no such t­hing as a f­ree crime.
­Every enforcement effort consumes scarce resources. The more conduct
we define as criminal, the more that scarce resources have to be allocated
selectively among dif­fer­ent crimes.” 74
Unlike other countries in which drugs and prostitution have been
legalized, the United States has deliberately ­adopted the policy of placing
a higher priority on enforcing consensual crimes than crimes involving
helpless and brutalized victims. Two poignant cases that took place less
than one year apart serve to illustrate this point.
In 1991, four popu­lar students at a middle-­class high school in Madi-
son, Wisconsin, became jealous of another classmate and friend’s new
blue jeans. They took her out in a car, locked her in the trunk, and for
several hours amused themselves by beating, stabbing, and sodomizing
her with a sharp tire iron. When their victim dared to beg for mercy and
call out for her m­ other, her four classmates dragged her out of the trunk,
sprayed Windex on her wounds, poured gasoline over her, and then slowly
burned their screaming classmate to death. The ringleader ­later described
what they had done by saying, “You should have seen it. It was so funny.” 75
­After the perpetrators w­ ere convicted of first-­degree murder, the judge
deci­ded to relieve the burden on the overcrowded prison system by prom-
ising the chief perpetrator of the crime, “She could do something useful
with her life ­after being released from prison.” 76 In response to a relatively
light sentence received, one perpetrator responded by saying, “It’s so stu-
pid when you think about it. I ­don’t blame me. We just need a ­little grow-
ing up.” 77
­Under this nation’s existing priorities, the early release of such defen-
dants is needed in order to provide prison space for p ­ eople like J. Harme-
lin. The year before the Madison torture murders, Harmelin was sentenced
Marijuana: Politics, Partisanship, and Demagoguery 13

by a Michigan court to a mandatory sentence of life imprisonment with-

out the possibility of parole for possession of less than a pound and a half
of cocaine.78 Apparently, ­there was nothing useful Harmelin could do
with his life ­after prison ­because policy makers had deci­ded it was neces-
sary to incarcerate him for life to protect society. Evidently, it was more
impor­tant to spend half a million dollars to incarcerate Harmelin, a drug
user, for life than to parole him and make room for violent offenders such
as the Madison torture murderers.
Indeed, u ­ nder existing public attitudes, Harmelin may even have been
fortunate to receive only a life sentence without parole. In 1989, federal
drug czar William Bennett responded to a question about the feasibility
of beheading drug offenders by stating, “Morally, I d ­ on’t have any prob­
lem with it.” 79 In the 1970s, the laws of several states—­including Georgia,
Louisiana, and Missouri—­proscribed the death penalty for youths over
age 18 who sold a marijuana cigarette to a youth u ­ nder 18.80 In Missouri,
the sentence for a second possession of marijuana was life imprisonment
without parole.81 In California, a first offense of selling a marijuana ciga-
rette carried a sentence of life imprisonment.82
­Those who are committed to the continued criminalization of such
“crimes” as homo­sexuality, contraception, and marijuana use believe
heavier penalties and strict l­egal enforcement w ­ ill result in greater com-
pliance with the laws. In this regard, it may be useful to again make his-
torical comparisons.
Consider the issue of legalized abortions. Momentarily setting aside
the question of ­whether abortion is a societal evil requiring suppression,
consider only the question of how suppression might best be accomplished.
In Austria, for example, where contraception and abortion are l­egal and
available, the abortion rate is one of the lowest in the world.83
Contrast this low rate, however, with the abortion rate in Romania
when that country was ruled by the dictator Nicolae Ceausescu, who
decreed that abortion was a serious state crime to be enforced by the
secret police. (Indeed his abortion laws appeared to have been modeled
­after t­hose of Nazi Germany, which was the only country in history to
impose the death penalty for abortion.) U ­ nder Ceausescu’s brutal regime,
government agents (dubbed the “menstrual police” by some Romanians)
rounded up w ­ omen ­under age 45 e­ very three months and examined them
for signs of pregnancy in the presence of agents. A pregnant ­woman who
­later failed to produce a baby at the proper time could expect to be sum-
moned for investigation and interrogation by the secret police. Not surpris-
ingly, abortion rates in Romania skyrocketed to the highest in Eu­rope, with
more than 60 ­percent of pregnancies ending in illegal abortion. In 1990,
14 Marijuana Politics

a­ fter Ceaucescu was overthrown and the harsh abortion law overturned,
Newsweek reported the poignant case of a young Romanian w ­ oman who
was recovering from a self-­ i nduced abortion. “I could have killed
Ceaucescu for that (anti-­abortion) law alone,” the suffering w ­ oman told
a Newsweek reporter. “Now that it’s pos­si­ble to be a w ­ oman again, I’m
mutilated.” 84
The effects of harsh drug and marijuana laws and enforcement have
had similar results. During the drug war of the 1980s, the federal govern-
ment extracted more than $20 billion from hapless taxpayers to fund
antidrug activities and harsh law enforcement.85 At a time when many
­children went unvaccinated and millions of Americans w ­ ere homeless,
the government spent $7.8 billion annually on drug enforcement.86 The
armed forces, including the Coast Guard and Air Force auxiliaries, ­were
mobilized in search-­and-­destroy missions and radar and he­li­cop­ter searches.
U.S. troops w ­ ere deployed to Colombia and army he­li­cop­ters ­were dis-
patched to Bolivia. Spy satellites ­were used by the Central Intelligence
Agency and the National Security Agency as part of the drug war. Drug
arrests of American citizens doubled to more than 852,000 in 1989, caus-
ing the already bursting U.S. prison system to turn away violent offenders
and give early release to many murderers, rapists, and child molesters.87
Domestically, when the National Guard was mobilized in 41 states, wire-
tap authorizations skyrocketed. Like Ceausescu’s anti-­abortion laws, U.S.
drug laws became progressively stricter in congressional legislation enacted
in 1984, 1986, and 1988.
So what was the result of such massive expenditures of public trea­sure,
use of wiretaps, intrusions into privacy, early release of violent offenders,
and the incarceration of hundreds of thousands of American citizens for
drug use? Like the increased number of abortions that resulted from
Ceausescu’s harsh anti-­abortion laws, drug use increased dramatically
as a result of harsh U.S. drug laws and enforcement. In 1990, the U.S.
Department of State reported that world production and consumption of
drugs had climbed to the highest levels in history.88 In such major cities
as New York and Washington, D.C., police officials reported no discern-
ible reduction in drug sales.89 Perhaps the most disturbing result of
the drug war, however, is that the United States, with 4.4 ­percent of the
world’s population,90 now consumes more than 34 ­percent of the cocaine
that is produced globally,91 a figure never approached when cocaine was
­legal in the United States.92
Holland again provides a useful basis for comparison. Arnold Trebach’s
monumental study of drug usage around the world reveals that drug
usage in the Netherlands declined dramatically a­ fter marijuana use was
Marijuana: Politics, Partisanship, and Demagoguery 15

decriminalized in 1976.93 Marijuana use by teens dropped by a staggering

33 ­percent ­after legalization.94 By 1985, only 0.5 ­percent of Dutch high
school students used marijuana compared to more than 5 ­percent in the
United States.95 Although the Netherlands is world renowned for having
liberal drug laws, a recent study concluded that the Netherlands had the
“lowest number of addicts in Eu­rope and the lowest proportion of AIDS
patients (3 ­percent) who are intravenous drug users.” 96 A policy of hero-
ine maintenance in ­Great Britain has resulted in a heroin addiction rate
less than one-­third of that existing in the United States,97 and drug-­related
crime is virtually non­ex­is­tent.98
In contrast to the United States, countries that have legalized drugs
share a common policy view—­namely, that one dollar spent on education
and treatment can have a greater effect on reducing drug addiction than
a thousand dollars spent on arrest, incarceration, military mobilizations,
and wiretaps. Indeed, the thousands dollars spent on enforcing drug laws
can increase rather than reduce the rate of addiction.
In the United States, a study by James Ostrowski has revealed that
when marijuana use was legalized in Alaska, use by high school se­niors
declined to 4 ­percent compared to a steady 6.3 ­percent in other states
where such drug use was illegal (and punishable by up to life in prison
without parole).99 William Chambliss’s monumental study of drug laws in
the United States concluded that the “use of marijuana actually declines
­after legalization.” 100
The possibility that drug use might actually decline as a result of
decriminalization is rarely considered by the opponents of legalization.
Often the only response to such a suggestion is something like, “Well, it
just c­ an’t be.” No amount of data, studies, or experience from other coun-
tries can convince the proponents of legalization other­w ise. The theory,
of course, is that the lure of drugs is so overwhelming that if they ­were
legalized, citizens from all walks of life who have never before used drugs
would suddenly leap at the chance to pump themselves full of poisonous
and addictive drugs. ­There are several reasons why this does not occur,
not the least of which is s­ imple common sense. Indeed, as discussed in
Chapter 3 of this book, marijuana use in the United States did not become
a serious prob­lem u ­ ntil it was criminalized, just as abortion in Romania
did not become pandemic u ­ ntil is was so brutally suppressed by
Ceausescu.
It is true that some surveys reveal that t­ here might be a small degree of
curiosity that leads to usage immediately a­ fter decriminalization, a curi-
osity that almost certainly would not have existed had the drug not been
previous criminalized. A study conducted by the National Commission
16 Marijuana Politics

on Marijuana and Drug Abuse in 1972 revealed that 3 ­percent of adults

who did not use drugs indicated they might try the drug if it ­were decrim-
inalized.101 If one ­were to assume the worst pos­si­ble scenario, that
4 ­percent of Americans might try and use marijuana or other drugs if
legalized, this would increase the number of annual deaths from illegal
drug use (not counting use of marijuana for which no documented case
of death from use has been found) by a figure far less than 1 ­percent of
the 550,000 deaths caused from the use of alcohol and tobacco. How-
ever, this figure would be offset by the thousands of lives saved by the
availability of uncontaminated supplies, clean ­needles, and fewer drug-­
related crimes and murders. However, proponents of continued enforce-
ment of the harshest drug laws propound that even a 1-­percent increase
in addicts would be a national disaster and justify filling half of the avail-
able jail space in the country. Studies conducted in foreign countries
with legalized drugs, however, reveal that legalization is much more
likely to result in lower levels of drug use and far lower levels of drug
abuse.
Milton Friedman, winner of the Nobel Prize in Economics, has
explained why legalization so often results in reduced usage. As his study
on the question reveals, the very fact that a drug like marijuana is illegal
makes it attractive as a “forbidden fruit.” 102 This alone might explain why
marijuana usage among high school students in Alaska was so much
lower than in other states where marijuana was illegal.
A study by Walter Block has offered a similar explanation as to why
drug use declines a­ fter a drug is legalized. According to his study, a drug’s
illegality “increases its attractions to so many ­people. If taking heroin
­were perceived merely to be stupid . . . ​instead of dangerous . . . ​fewer
would take it.” 103 Block concludes that criminalization only plays into the
hands of the criminal ele­ment: “Better to ruin their business by deflating
the profit balloon than by acting in a way which only ­supports them.” 104
­There are, however, other explanations of equal importance.
A perverse effect of U.S. drug-­enforcement policies is that even mod-
est enforcement victories serve to intensify the drug prob­lem. For exam-
ple, a­fter billions of dollars w ­ ere spent on the drug war, federal
enforcement agencies claimed that as much as 5 ­percent of drug imports
had been intercepted as the fruits of victory. What t­hose enforcers did
not realize, however, was even this ­great “victory” did nothing except
raise the price of the prohibited drugs, increase the profit margin for
drug dealers, and send an economic signal to drug producers to increase
production (which, of course, is exactly what happened). As Walter Block
has observed,
Marijuana: Politics, Partisanship, and Demagoguery 17

­ very time a ­battle is won in the [drug war], paradoxically, the ­enemy is
E
strengthened, not weakened. [Interdiction] only succeeds in raising the
profit motives attendant upon production. Thus, the more vigorous and
successful the activities of the Drug Enforcement Administration, the
greater the strength of the illicit drug industry.105

A study by Steven Witosky has revealed the relationship between the

illegality of a drug like marijuana and its price.106 The study cites the price
in 1981 for an ounce of pharmaceutical-­grade cocaine hydrochloride pro-
duced by a major U.S. phar­ma­ceu­ti­cal com­pany as around $1.80 per
gram.107 That same year, the Drug Enforcement Administration (DEA)
estimated a street price for cocaine of more than $55,000 per kilogram.
Taking into account differences in purity, the study concluded that the
criminal law had succeeded in

taxing cocaine about $800 per gram, or about $22,350 per ounce . . . ​
thereby making the illegal [production of cocaine] extraordinarily profit-
able. It has been estimated that the total premium over ­actual cost of pro-
duction exceeds $72 billion annually—­almost all of which goes to support
and promote criminal activity instead of to education and drug treatment
programs.108

Higher prices also have another effect—on the user. Instead of only
having to burglarize two homes a week to earn enough money to support
a habit, an addict might have to burglarize six homes a week to earn
enough to pay the higher price for the drug. A study by the Drug Abuse
Council revealed that for e­ very 10-­percent increase in the price of heroin,
crime increased by 2.87 ­percent.109 In Washington, D.C., the murder rate
doubled a­ fter police began to step up enforcement of the drug laws.110
Thus, even a modest “victory” claimed by t­ hose conducting the drug war
has the direct result of increasing crime—­a result felt by ­every American,
rich or poor.
Thus the costly drug-­ enforcement “victory” has five major conse-
quences: (1) It increases the profit to the drug dealer and helps to support
the lavish tax-­free lifestyle of the privileged few; (2) it diverts billions in
potential tax dollars away from the government (which could be used for
education and drug-­treatment programs) to or­ga­nized crime, where it is
sure to be used for a variety of criminal purposes; (3) it increases the eco-
nomic incentives of drug producers to increase drug production; (4) it
incentivizes the addict to increase the number of violent and property
crimes committed to support his habit; and (5) it results in the increased
use of prohibited drugs such as marijuana. An analy­sis of FBI statistics
Exploring the Variety of Random
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Chloral." Label No. 24. A bottle, labelled " Extract of Opium." Label
No. 25. A bottle, labelled " Aconitum Napellus." Label No. 26. A
bottle, labelled " Chloral Hydrate." Label No. 27. A bottle, labelled "
Liebrich's Chloral Hydrate." Label No. 28. A bottle, labelled " Calvert's
number 2 Carbolic Acid." Label No. 29. A bottle, labelled " Mercurius
Solubilis." Label No. 30. A bottle, labelled " Sulphate of Zinc or White
Vitriol" Label No. 31. A bottle, labelled "Phosphorated Oil." Label No.
32. A bottle, labeUed " Arsenical Solution." Label No. 33. A bottle,
labelled " Solution of Arsenic." Label No. 34. A bottle, labelled "
Chlorodyne." Label No. 35. A bottle, labelled " Bromide of
Potassium." Label No. 36. A bottle, labelled " Podophyllin Res." Label
No. 37. A bottle, containing crystalline substance. Label No. 38. A
bottle, containing a white powder. Label No. 39. A bottle, labelled
"Tartar Emetic." Label No. 40. A box, containing two pills. Label No.
41. A box, labelled "Extract of Opium, Dec. 23/72." Label No. 42. A
box, containing a brown powder. Label No. 43. A box, containing
substance like rosin. Label No. 44. A packet, containing leaves. Label
No. 45. A jar, containing a dark substance. Label No. 46. A box,
containing a white powder. Label No. 47. A bottle, labelled " Chlr.
Hart." Label No. 48. A bottle, labelled " % Ib. Rhabarber," or
similarly labelled. Label No. 49. A bottle, labelled " Sulphuric Ether."
Label No. 50. A bottle, containing liquid, and labelled in Greek
characters. Label No. 51. A bottle, labelled " Bromide of Potassium."
Label No. 52. A bottle, containing liquid. Label No. 53. A paper,
containing a white substance. Label No. 54. A stoppered bottle
(broken), containing brown powder. Label No. 55. A bottle,
containing liquid. Label No. 56. A box, containing a yellowish
powder. Label No. 57. A Vesuvian box, containing a tooth and a pill.
Label No. 58. A scenU>ottle. Label No. 59. A cigar case. Label No.
60. A knife, Label No. 61. A pistol. 33
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Eugene Marie Chantrelle. Label No. 62. A small box,

labelled " Extract of OpiumPoison." Label No. 63. Two revolvers.
Label No. 64. A piece of gas pipe. Label No. 65. A piece of gas pipe.
Label No. 66. A key. Label No. 67. A key. Label No. 68. A metal ring,
with eleven or thereby keys appended. Label No. 69. A metal ring,
with six or thereby keys appended. Label No. 70. A metal ring, with
ten or thereby keys and an ivory label appended. Label No. 71. Two
or thereby keys attached with a piece of string. Label No. 72. Two or
thereby keys attached with a piece of string. JAS. MUIRHBAD, A.D.
LIST OP WITNESSES FOB THE PROSECUTION. One hundred and
fifteen persons were cited, of whom the following forty-eight were
called : — 1. George Morrison Paul, W.S., Edinburgh. 2. Robert
Morham, jun., architect, Edinburgh. 3. Mary Byrne, domestic servant
to Madame Chantrelle. 4. Eugene John Chantrelle, son of the
accused. 5. Peter Baillie, gasfitter with the Edinburgh Gas Company.
6. John Somers, foreman gasfitter with the Edinburgh Gas Company.
7. Robert Hogg, gasfitter with the Edinburgh Gas Company. 8.
Andrew Mason, gasfitter with David Fowlis, George Street,
Edinburgh. 9. Mary Elizabeth Lethbridge, nurse in Royal Infirmary,
Edinburgh. 10. Jane Brown or Stevenson, assistant nurse in Royal
Infirmary, Edinburgh. 11. William Frew, criminal officer, Edinburgh
Police Force. 12. William Angus, criminal officer, Edinburgh Police
Force. 13. Alexander Nicholson, constable in Edinburgh Police Force.
14. John Hay, formerly criminal officer in Edinburgh Police Force. 15.
Thomas Davie, constable in Edinburgh Police Force. 16. James
Carmichael, M.D., 42 Northumberland Street, Edinburgh. 17. Henry
Duncan Littlejohn, M.D., Royal Circus, Edinburgh. 34
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The Trial. 18. Charles Arthur, assistant with Robertson &

Co., chemists, Edinburgh. 19. Peter Purves, apprentice to the said
Robertson & Co. 20. George Harrison, medical student, residing with
Dr. Carmichael, Edinburgh. 21. John Francis Grayling, medical
student, also residing with Dr. Carmichael. 22. Douglas Maclagan,
M.D., Professor of Medical Jurisprudence, Edinburgh University. 23.
William Burley, managing chemist to Mr. Mackay, George Street,
Edinburgh. 24. Alexander Crum Brown, Professor of Chemistry,
Edinburgh University. 25. David Gordon, M.D., George Square,
Edinburgh. 26. Robert Bruce Johnston, W.S., Procurator-fiscal for
City of Edinburgh. 27. William Robert Reid, upholsterer with Morison
& Co., George Street, Edinburgh. 28. Albert Butter, manager, Union
Bank of Scotland, Edinburgh. 29. James Norwell, secretary, Union
Bank of Scotland, Edinburgh. 30. William Lindsay Wood, accountant
in Bank of Scotland, Edinburgh. 31. Richard Parnell, manager,
Westminster Bank, London {medical certificate produced). 32.
George Todd Chiene, C.A., Edinburgh. 33. John Scott Tait, insurance
clerk with the said George Todd Chiene. 34. William Bell MacwEinnie,
insurance manager, Edinburgh. 35. David M'Kenzie, constable in
Edinburgh Police Force. 36. Isabella Wilson Ness, formerly domestic
servant to Madame Chantrelle. 37. Agnes M 'Alpine, formerly
domestic servant to Madame Chantrelle. 38. Roderick Brass,
sergeant in the Edinburgh Police Force. 39. Margaret Wood, formerly
domestic servant to Madame Chantrelle. 40. Barbara Rendall or Kay,
widow, Clyde Street, Edinburgh. 41. Margaret Davidson or
Somerville, Stockbridge, Edinburgh. 42. David Robert Kemp, clerk in
Union Bank of Scotland, Edinburgh. 43. Alexander McDonald, private
detective, Hill Square, Edinburgh. 44. Charles Byron Hogg, solicitor-
at-law, Picardy Place, Edinburgh. 45. James Brodie, sergeant in
Edinburgh Police Force. 35
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Eugene Marie Chantrelle. 46. Anna Chalmers Gray or Baird,

Hargrave Park Road, London. 47. John James Dyer, law clerk,
Edinburgh. 48. Margaret Cullen or Dyer, South Gray Street,
Newington, Edinburgh. LIST OF WITNESSES CALLED FOR THE
DEFENCE. 1. Professor Douglas Maclagan, University of Edinburgh.
2. Dr. Young, Portobello. 3. William Gilmour, chemist, Elm Row,
Edinburgh. 4. John Stephenson, chemist, Edinburgh. 5. Alexander
Green, tailor, Edinburgh. 6. Robert Brown, Bay Horse Inn, Edinburgh.
7. Madame Pradel, dressmaker, Frederick Street, Edinburgh. 8. John
Falconer King, city analyst, Edinburgh. On the calling of the diet, Mr.
ROBERTSON, for the panel, took objection to that part of the
indictment in which there was an averment of malice and ill-will on
the part of the accused against his wife. After setting forth the facts
relied upon as constituting the crime of murder, the indictment
proceeded — " And you the said Eugene Marie Chantrelle had
previously evinced malice and ill-will towards the said Elizabeth
Cullen Dyer or Chantrelle, and, on many occasions between the time
of your marriage with her in the month of August, 1868, and the
date of her death aforesaid, had falsely accused her to other persons
of adultery and of incest, and struck and otherwise maltreated and
abused her, and threatened to shoot and to poison her, and by your
violence and your threatenings put her in fear of losing her life." He
should not, he said, dispute the right of the Crown to give notice to
the accused that it was their intention to prove malice entertained
for some time against the deceased. He might go further and say
that the authorities, he thought, had well established that notice of
malice had been well given without specification of the particular
occasions on which the acts were committed which were relied upon
as evidence. He might refer in particular to the case of M'Lellan* 4th
November, 1846. The objection there taken by the accused was that
there was no specification of the acts of maltreatment and ill-usage
which were relied upon as evincing malice, and the judgment of the
Court was to the effect that it did not fall upon the prosecutor to
give articulate notice of time, place, and circumstance. At * H.M.
Adv. v. Janet Campbell or M'Lellan (High Court). Reported in Arkley's
Justiciary Reports, p. 137. 36
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The Trial. the request of the Court counsel read the terms
of the indictment in the case referred to, which were to the effect
that the accused had previously evinced malice and ill-will towards
her husband. That, he contended, was perhaps the barest form of a
notice of malice. The Court had frequently had indictments alleging
that malice and ill-will was evinced by maltreating and striking,
without specification of time and place. There were other verities,
but these did not touch the point to which he now called attention.
In the present instance, his lordship would observe that the latitude
of time taken was, to say the least, unusual. The death of Madame
Chantrelle occurred on 2nd January, 1878, and the prosecution
proposed to prove malice during the whole period from that date
back to August, 1868, or nearly ton years. His lordship would
observe further that that period was expressly said to be the whole
married life of the two parties. Now, he submitted, the nature of the
evidence of malice proposed to be offered was such as he thought
unprecedented. It was proposed to be shown in proof of malice that
the accused had on many occasions, during ten years, falsely
accused the deceased to other persons of adultery and incest. It was
to that part of the indictment that he specially objected. With the
exception of the general objection of too great latitude of time, he
did not object to the words that followed; he did not object to the
prosecution giving notice of an attempt to show that the accused
struck and otherwise maltreated the deceased, or threatened to
shoot and poison her, and by violence and threatenings put her in
fear of her life. With regard to the other point, it would, he thought,
be highly inconvenient that his lordship and the jury should be
occupied, especially in a trial of this complexity and magnitude, with
the investigation of the question whether, on various occasions and
to many persons, the prisoner accused his wife of adultery. His
lordship would see that that raised a great many separate issues ;
but, further, there was an answer to such an averment of malice in
the mouth of the prisoner, which would be a good and conclusive
one — and that was, that, suppose the charge of adultery proved, it
would not evince the malice which indicated a murderous
disposition. His lordship would have to try, in the first place, whether
the accusation was made on many occasions and to many persons ;
and, in the second place, whether there was not truth in that
accusation ; and the question came to be, whether an inquiry of this
kind, extending over ten years, was likely to throw light upon the
main issue. After reading an extract from the leading opinion in the
case previously cited by him, counsel submitted that the set of facts
which was in contemplation of the bench in a case of that kind was
merely the constant tenor of the relations between the parties as
showing that the husband did not enter37
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Eugene Marie Chantrelle. tain towards his wife the feeling

of affection and the consciousness of the duty of protection which
the law and a jury would assume, unless the contrary was shown. It
was obvious that a prosecutor could not be required to say that, on
one particular day, the man struck his wife, on another threatened
her, on a third committed acts of violence. It would be vain to expect
that. But how, he asked, did reasoning of that kind apply to a case
so extraordinary, and involving so many circumstances external to
the domestic circle, as the charge here made1? It was said that the
prisoner had evinced malice or jealousy by making accusations of
adultery to certain persons, and that over a course of years; but was
it consistent with human experience that for ten years this sort of
thing could go on with that gravity of suspicion or malice which
would lead to a murderous act? If the prosecutor was to be believed
in saying that for ten years the prisoner went on accusing his wife of
adultery, it was quite obvious that the accusation must have lost all
the sting that could lead up to an act of violence towards her
person. If it had been said that a short time before the occurrence,
specifying the time or not specifying the time, but at all events
limiting the time, a man accused an innocent woman falsely of
adultery, that would raise a very prevalent suspicion that he was
taking away her character from the same motive that afterwards led
him to take away her life; but in the present case, besides the
inconvenience and inexpediency of admitting so wide a range of
inquiry, he thought the very statement on the libel deprived the facts
of that probability, or plausibility, which was the only reason for
admitting them as matter of evidence. Further, while no one could
pretend that an accusation of this kind was made every day, or that
the prosecutor was disabled by the nature of the accusation from
furnishing some further indication of what it .was, the prisoner was
yet left completely in the dark as to what was the nature of the
accusation he was said to have made, or who was the person with
whom the adultery was said to have been committed. In reply to an
observation from the bench, counsel submitted that the mere
admission of a general notice of malice did not permit the Court to
admit all evidence that might be adduced ; evidence might be
excluded on the ground that it was too remote in point of time ; but
his reason for challenging the indictment at this stage was that the
prosecutor frankly avowed that he was going over ten years of false
accusation. As to the period proposed to be embraced, he was not
aware that there was any case in the books where ten years had
been avowedly taken as the period during which malice was to be
proved ; and in ordinary practice a fortnight was regarded as the
proper period during which violence or threats might be proved.
When they went further back than a fortnight, notice was required
38
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The Trial. to be given. In the Lord Justice-Clerk's opinion in

M'Lcllan's case there was a complete digest given of the cases in
which questions of this kind had been discussed. In some of these
there was no latitude of time expressly taken, and there, of course,
the Court had to settle the question as it came up in evidence. But in
many cases the period was given, and he had not found one with a
greater latitude than ten months or two years. If that were so, he
did not discover on the face of the present indictment anything to
induce his lordship to stretch the practice of the Court to a greater
extent than was usual, to say the least of it. Counsel concluded by
submitting that the averment of evincing malice by false accusations
of adultery and incest should be thrown out of the indictment
altogether, and that, with regard to the rest, the latitude taken by
the prosecution was too great. The LORD ADVOCATE, for the
prosecution, said in reply that the case before the Court was, on the
face of it, the case of a husband accused of murdering his wife, and
it was not unimportant, as regarded the line the Crown ought to
take, to libel ill-will and malice before the alleged cause of death was
inquired into. In the case of M'Lellan, the judge said that in the
relation of husband and wife, or master and apprentice, it was quite
obvious that a general statement as to previous malice or harsh
usage embraced the widest possible range of facts occurring, as
they might do, in the constant intercourse of daily life, and
extending over an indefinite period. Now, he (the Lord Advocate)
apprehended that it was no objection to the relevancy of an
indictment that certain particulars which the prosecutor intended to
put in evidence were not specified. It would be quite competent to
prove these specific facts under a general allegation of malice and
ill-will. It would not do to cite extreme cases against this contention.
He apprehended that in every case the question would arise for the
determination of the Court whenever a witness was examined in
regard to it. The weight of the facts or evidence so adduced was a
question for the consideration of the jury, under the direction of the
judge. Now, in this case, without wishing to anticipate, he thought
that a reference to certain matters included in one of the
declarations would satisfy his lordship of the propriety of their giving
such intimation. He might frankly tell his learned friends on the other
side that it was with considerable reluctance that these allegations
were inserted in the indictment. But, on the other hand, there were
certain statements made, which he should not refer to now, which
necessitated the leading of evidence upon that question. He had no
desire to go into the history of these married persons previous to the
1st of January, 1878; but, on the other hand, if these statements
were to be alluded to before the jury, it would necessitate such 39
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Eugene Marie Chantrelle. an inquiry. He might fairly

intimate to his learned friends that he had no desire to use these
statements; but he had as little desire that any reflections should be
made on the conduct of the Crown case if they were not used. The
details in question were to a certain extent excrescences on the case
; but they had been rather forced on the prosecution than willingly
taken up by them. Mr. TRAYNER, for the panel, said that after what
had fallen from the Lord Advocate, there was little use in their
discussing the legal question farther. At the same time, he ventured
to suggest to the Court that the objection stated by his learned
friend, Mr. Robertson, was a sound one, and ought to be sustained.
He did not anticipate that either throughout the trial, or at the end
of it, would it be in the least degree necessary for those who
represented the prisoner to make any reflections whatever on the
way in which the Crown had conducted the case. If this matter was
not to be inquired into, perhaps the better way for his lordship, after
what the Lord Advocate had said, would be to allow him (Mr.
Trayner) to raise the objection again, if it should be necessary to do
so, in the course of the inquiry. The LORD JUSTICE-CLERK said he
thought that would be a very proper course. After consultation with
his colleagues, the LORD ADVOCATE asked leave to amend the libel
by deleting the words " falsely accused her to other persons of
adultery and of incest " ; and this was agreed to. The libel having
then been found " relevant to infer the pains of law," the prisoner
was called up to plead and replied in a clear and firm tone " Not
Guilty, my Lord." The following jury was then balloted for and
empanelled : — James Mitchell, farmer, Castlehill, Peebles; John
Graham, farmer, Crookston, North Mains, Heriot; James Dunbar,
butler, 7 India Street, Edinburgh ; Robert Wight, jun., provision
merchant, 7 Annandale Street, Edinburgh; James Home,
patternmaker, Parkvale Place, Edinburgh ; John Cruickshank,
surveyor, 1 Coates Place, Edinburgh; Alexander Fullerton Paterson,
grocer, 12 Primrose Street, Edinburgh ; Robert Sutherland M'Donald,
clerk, 21 Salisbury Street, Edinburgh; William Brown, grocer, 12
Gillespie Crescent, Edinburgh ; George Denholm, porter, 45 Prince
Regent Street, Edinburgh ; Thomas Moran, shoemaker, 269 High
Street Edinburgh; James Henderson, grocer, Peebles ; Alexander
Sharp, upholsterer, 2 Barony Street, Edinburgh ; William Stephenson,
farmer, Heathery Hall, Haddington ; and James Johnston,
shoemaker, Bathgate. The trial then proceeded. 40
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No. 81a George Street, Edinburgh, where E. M. Chantrelle

resided.
The text on this page is estimated to be only 28.07%
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Evidence for Prosecution. Evidence for the Prosecution.

GEORGE MORRISON PAUL, W.S. By Mr. MUIRHEAD — I have
compared, with the original documents embodied therein, two
separate prints — the former of which contains two declarations by
the accused, dated respectively 8th and 9th January, 1878 ; three
reports of post-mortem examination and chemical analyses ; and
inventory of bottles,
The text on this page is estimated to be only 28.46%
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Eugene Marie Chantrelle. Mary Byrne and mistress, Eugene,

Louis, and the baby. The baby is a boy. So far as I know, the eldest
boy, Eugene, is between nine and ten years of age. Louis would be
about seven, I think, and the baby was two months old. The house
consisted of a kitchen, dining-room, parlour, and class-room on the
lower of the two floors, and two bedrooms upstairs. The front
bedroom was master's and the one at the back madame's. The front
bedroom was also called the nursery. My room was next door to
master's. My master had some pupils who came to the house. Some
came from 9 to 10 o'clock in the morning, and some came from 7 to
9.30 at night. A young gentleman used to come from 2 to 3, and
two young ladies came on Saturdays from 12 to 1 o'clock — the only
pupils who came on Saturday. Between 8.30 and 9 o'clock madame
and the children usually took breakfast. Master never took breakfast
with them. Madame and the children had dinner about 5 o'clock.
Master occasionally, but not frequently, had dinner with them.
Master taught out of the house — at Buckingham Terrace and at
Leith High School. The family took dinner and tea together. They had
a little supper later at night. Master never took supper with them. He
was not much in the house, except when in bed or engaged in
teaching. He got a large cup of tea in his bedroom every morning
before he got up, but he took nothing to it. Sometimes he
breakfasted afterwards in the house, and sometimes not. Eugene
was at school until we went to Portobello in August last. It was very
seldom that master dined with his family on Sundays. When I went
there the bedrooms were occupied in this way — Madame slept in
the back room in a large iron bed, Louis and the baby slept with her,
and Eugene slept in a cot by the side of the bed. The master slept in
the nursery — that is, the front bedroom. He and madame occupied
separate apartments all the time I was there. A little before
madame's death Eugene and Louis went into their papa's bedroom
to sleep. Eugene went about a fortnight before, and Louis a week or
so before that date. There was no bed in the front room except the
one master had, and they all slept in it. It was a small iron bed. I did
not hear about this change of arrangement of Eugene sleeping in
the front bedroom at the time. I did not know until one morning
when I saw Eugene coming out of the front bedroom when I was
taking up master's tea. I asked madame what Eugene was doing in
his papa's bed, and madame said it was a notion papa had taken, as
he was lonely, and wanted some one to sleep beside him. I passed
no further remark upon it. Madame said that Eugene's cot was
rather small for him ; and it did seem rather short. After Eugene
went to his father's bed, the cot was not occupied. Louis continued
to sleep with his mother till
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Evidence for Prosecution. he went to his father's room. I

remember of Louis being Mary Byrne changed from his mother's
room on a Wednesday night. I was out that night, and when I
returned he was in his papa's bed in the nursery. I asked madame
why Louis had gone to his papa's bed, and she said she was to take
him away. The following morning I found him sleeping in his
mamma's room as usual. On the following Sunday night, however,
he went to the nursery, and remained — that was the last Sunday of
the old year. The baby remained with his mother all through New
Year's Day. Madame Chantrelle was in the habit of rising between
half-past eight and nine o'clock in the morning. She was very regular
in her time of rising. She went to bed at the latest about a quarter-
past ten. She seemed to be in very good health, and I never heard
her make any complaint. The only medicine I have ever seen her
take was a pennyworth of salts at the time the baby was weaned. I
have seen no medicine kept in her room except castor oil, soap
liniment, and a bottle of glycerine. I saw no boxes of medicine or
pills about her room. There were a wardrobe and a chest of drawers
in her room, but they were kept locked. In the master's room there
were several medicine bottles. I never saw him give medicine to
anybody, but he used to make up medicine for Mr. Reid — he made
it up in the class-room. I knew it was for Mr. Reid, because the boy
came for the bottle ; and my master sometimes told me, if Mr. Reid's
boy came, to say that he (the prisoner) had gone over with it
himself. There was a press in the class-room. There were several
bottles in it ; but I only once saw the inside of it. I went in with a
hat and clothes brush, and M. Chantrelle was in the room at the
time, and the door of the press was open. He never prescribed for
me, but he onoe gave me a bit of camphor for a bad cold, and some
of the soap liniment to rub my chest with — the same thing as was
in my mistress's room. Except when he was in bed or in his class-
room, M. Chantrelle was not much in the house. He did not take his
meals very often in the house, except on Tuesdays and Thursdays,
when he was going to Leith High School. At other times he
breakfasted when he got up, and sometimes he did not. Sometimes
he dined with the family, and at other times not until they had
finished. He very seldom came in at night before eleven o'clock, and
sometimes it was later. My mistress was usually in bed before he
came in. She and I generally retired about the same time. I have
seen her in bed. She used to come to my room and bid me good-
night, and I used to do the same to her. After M. Chantrelle came in
he always went into the parlour. I don't know at what time he went
to bed. Some nights I heard him going up to bed, and other nights I
did not hear him. Madame Chantrelle was a very nice lady — as nice
as any one 43
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Eugene Marie Chantrelle. Mary Byrne could live with. She

was very fond of her children. She idolised them, and was attentive
to them in every way. She was very fond of speaking about the
children. I used to take the children out after Helen Ness left. The
mistress went out with me, but very seldom. The master was not
very kind to her. He never went out with her ; he was not very
attentive. He never went to church or anything else. The mistress
went to church very often, and she took Eugene with her. M.
Chantrelle never went with her, at least so far as I know. On
Sundays he remained in bed till four or five o'clock in the afternoon,
then he would get up and dress, take a cup of tea, and perhaps go
out. Sometimes he would take a bit of bread and cheese. He took a
good deal of drink. He took whisky and water. He finished about a
bottle a day. It was shortly after we came up from Portobello that I
first noticed that he was taking that large amount of liquor. We were
about a month there. He took that quantity of whisky pretty
regularly. He used to drink it in the parlour, and he used to get a
glass of it up nearly every morning in a cup of tea. He used to take a
good deal of water with his whisky. I could notice the effects on him.
The master and mistress did not get on very well together. I noticed
that shortly after coming up from Portobello ; but they did not get
on very well down there either. He used bad language to her. I heard
him say to her, " Go to h — " and " Go and stay with your mother."
This was at Portobello, but I can't say what occasioned his saying so.
When I heard these expressions the master and mistress were in the
parlour, and I was in the kitchen. I never heard him say things, that
I am aware of, after we returned from Portobello. I can't recollect of
having heard any strong language in George Street after coming up
from Portobello ; but I think I once heard him say, " Go to h — ,"
after leaving Portobello — a fortnight or three weeks after. I have
heard him use strong language towards her in my presence, but
nothing of any great consequence. I have heard him say, " I will kick
you out." I have heard him say such things only once or twice. I
don't know what led to his saying such things. By the COURT — I
was in the same room with them when I heard this language.
Examination continued — I have heard him use strong language to
her three times altogether — once at Portobello and twice after we
came back. When I heard that language he was sitting on a chair at
the fire, and Madame Chantrelle was sitting near the window. I think
it would be during the afternoon. I heard no words between them
before going into the parlour j and I don't know that my mistress
said anything at all. She left the room. I never heard her use strong
44
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accurate

Evidence for Prosecution. language of any kind towards my

master. None of the Mary Byrne children, except the baby, were
present when I heard him say the things I have mentioned. I had a
holiday on New Year's Day. That was arranged with Madame
Chantrelle. She was in good health on that day ; she was out with
baby, Louis, and Eugene on New Year's Eve. She was in very good
spirits. She went out about twelve o'clock on the day before New
Year's Day, when baby got up from his sleep, and she returned
about four o'clock. The prisoner got up about twelve o'clock that
day. He was just dressing when my mistress was going out. He had
no breakfast that day. He went out immediately after he came
downstairs. He returned shortly afterwards, and remained indoors till
five o'clock. He had no dinner, but went out again ; and he returned
between seven and eight o'clock, and the supper things were then
set. I don't know whether he ate anything or not. He went out again
between half-past nine and ten o'clock, and I did not see him come
in again. That was New Year's Eve. Madame Chantrelle was out
again that day after taking the children home. She went out to buy
some things for the children for New Year gifts. That would be
between half-past six and seven — perhaps nearer seven. The
mistress had got a present of a cake from her mamma and some
shortbread. The supper was set with these, and with a bottle of
champagne. Two bottles of champagne were got on Christmas Day.
One of them was opened on that day, and the other on New Year's
Eve. M. Chantrelle was in between half-past eight and nine o'clock,
when the bottle was opened. The mistress brought me some cake
and a glass of champagne. I did not wish to take the champagne,
but I took a small part of it, and gave the remainder to Louis. The
mistress brought her own share into the kitchen with her, and took it
there. Baby had been put to bed at half-past six o'clock, and
Madame Chantrelle went up after supper to put Louis and Eugene to
bed. Then she went out to post some New Year's cards — one to her
mother and one to a lady in London. The children were washed in
the kitchen, and were put to bed at half-past nine. Madame
Chantrelle came downstairs about ten o'clock. She came into the
kitchen, and said she was going to the parlour. The master was
there ; and he remained up till twelve o'clock, when the New Year
came in. I stayed in the kitchen all the time till the New Year came
in. When twelve o'clock struck all the bands in the Castle began to
play, and Madame Chantrelle put her head into the kitchen, and said
to me, "Come into the dining-room and hear the bands play." I went
into the dining-room, and was putting my head out at the window
when the master said, "You had better stay where you are in case
you get a blow." That may have been said in joke. 45
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