Jurisprudence, Marijuana

Defining Marijuana

Weed. Grass. Ganga. Chronic. Buddha. Tea. Green. Dro. Pot. Kush. Indo. Hash. Mota. Broccoli. Cheeba. Kill. Coffee. Mary Jane. Sensimilla. 420. Purp. Jah. Grapes. Clinton’s Asthma.

These are just a few of the many slang terms used for marijuana in America. Some of them are street names for particular strains, others are vernacular terms confined to certain regions, and at least one of them I made up just now for the hell of it. (Although I fully expect to be approached by someone offering me a sack of top-grade ‘Clinton’ within the year.)

Slang, of course, is just an informal way of saying something that there’s already a word for. When you learn the word (or words) that the slang is substituting for, you’ve cracked the code. “This word means that word. I know what that word symbolizes, so I know what this word symbolizes.” It’s a simple puzzle.

However, something different happens when you’ve cut through a layer of slang and still can’t really identify what the underlayer is. Then, you’re lost – you might feel a little embarrassed. For example, I can distinctly remember this second-layer of sheepish non-understanding happening to me in elementary school when I first learned the “meaning” of the “F” word.

This is what happened in the American legal system in the first half of the 20th century – what happened below the media hype of “loco-weed,” “griefo,” and “reefer,” when the first laws prohibiting marijuana in America came into existence and the courts had to figure out exactly what this new drug was.

The name of this blog comes from a reporter’s description of marijuana in the 1920s as “Mexican Opium.” This is actually a pretty rational definition for marijuana given the frame of reference for the time. Marijuana’s legal predecessor was opium. (“Well, this marijuana stuff that we’re seeing now, it’s something you smoke that changes the way your mind works. Like, you know, that opium we outlawed for the Chinese. Yes, just like opium. But it’s not the Chinese who are smoking it, it’s the Mexicans. So, you know, it’s Mexican opium.”)

Rational and accurate as a racial-analogy definition like this may have been socially, the courts had to be a little more exact than that.

The problem was that because marijuana usage during this period was mostly limited to Mexican immigrants, the overwhelming majority of Americans (and certainly those of the judicial class) simply had no idea what the drug was. They knew was that it was “bad” from news reports, but they didn’t quite know why it was bad, or what went into it making it so.

As a hefty percentage of legal reasoning comes down to simply defining the words at issue, this unfamiliarity was problematic. For an example of such a problem, take a gander at this passage “defining” marijuana from the 1933 Texas decision in Baker v. State (123 Tex. Crim. 209, 210):

“Marihuana (marijuana),” pronounced “merry-huana,” and called “griefo” or “merry” by addicts that use it, is a product of Mexican hemp. It contains a volatile drug. It is most often taken in the form of a smoke, and sometimes mixed with tobacco. It produces a high exhilaration, and when taken in excess, it motivates brutal criminality.

We have no authentic information touching the drug last mentioned above. No reference to it either in the dictionary or the encyclopedia has been discovered. The foregoing is from a statement in a magazine and the accuracy of the statement is not vouched for by the members of the court.

Baker concerned an issue of inadequate information provided in a narcotic possession indictment. Baker had been charged with possessing “narcotics,” but the narcotic he possessed had not been specifically named in the indictment. The court overturned his conviction, reasoning that because the statute provided for several different narcotics, the specific narcotic Baker possessed needed to be named in the indictment to allow Baker to adequately defend himself of the charge.

The opinion doesn’t go any deeper than this into the exploration of what marijuana is, rather just uses this definition of marijuana as an example of one of the potential “narcotics” that make the indictment too vague to defend against. Ironically, this attempt to use a “definition” of marijuana to show vagueness ends up providing a second layer of inadequate information.

While the Baker example is dicta, it is an interesting candid snapshot of an early marijuana opinion where it seems like the judge went in with a certain structure of his opinion all outlined (“You know what I’m going to do in this opinion? Define each of the narcotics in the statute. That’ll show them. This is going to be awesome.”), and then realized after he started writing that he didn’t actually know the substance for one of the bullet points on his outline (“Marajuana? Did we study this one? Hmmm. Should I check Wikipedia? That’s probably cool, so long as I throw a disclaimer in there.”).

For a non-candid look at the problem of defining marijuana, two years before Baker there is an incredibly illustrative case out of Louisiana, State v. Bonoa (172 La. 955). Bonoa is exclusively about marijuana and its prohibition. If you only had five minutes to live, and in those five minutes you wanted to read a judicial decision encapsulating the beginnings of marijuana prohibition in America, Bonoa is the case they should be respectfully yanking from your lifeless but intellectually-white-knuckled hands in the sixth minute.

Bonoa was busted with 500 marijuana plants in his backyard. The statute at issue in the case declared that “No person shall possess, sell, deliver, dispose of or manufacture any cigarette, tobacco, or other smoking or chewing or snuffing article which either in whole or in part contains any plant either in the dried form or otherwise of the Mexican plant known as Marajuana.”

Here’s the court’s summary of Bonoa’s challenge to his conviction:

[Defendant claims the statute] is unconstitutional, null, and void, in so far as it attempts to prohibit the possession of plants termed Marajuana, as the section, by so doing, seeks to prohibit the possession of something unknown, for, it is urged, there is no such plant known as Marajuana, and hence the terminology used conveys to the people of the state no conception of what is prohibited. [Defendant also claims that the statute] is violative of [the state Constitution, which provides] that no person shall be deprived of life, liberty, or property, except by due process of law…

At 958.

To clarify the second point: Bonoa is arguing on top of the fact that the “marajuana” plant isn’t adequately defined in the statute (i.e. the slang term doesn’t refer to an actual plant of any sort), even if the plant could be banned for its drug uses, to ban the plant outright because it can be used as a drug is depriving citizens of the non-drug uses of the plant without due process.

Spoiler alert… Bonoa loses, and the full-plant marijuana prohibition stands.

Justice Overton writes the opinion. Whether or not one agrees with his evidence or his conclusions, he addresses the issues presented in full. If you have access to legal texts and are interested in marijuana law, it’s worth looking up and reading (parallel cite is 136 So. 15). He cites to a few sources of the time to define the drug, reminds us of the expansiveness of the police power, and moves on.

Inevitable result, sure, but I wanted to write about this case just to give pause for the efforts of Bonoa’s lawyers, Richard A. Dowling and William R. Kinsella. I couldn’t find anything about these gentlemen besides their names on the opinion, but I feel like the arguments they made for their client are incredibly valiant efforts to overcome the marijuana ban. And by “valiant,” I mean that they seem to be in going in front of the court, standing there cloaked in sound legal arguments of vagueness and due process, but actually just turning to the Louisiana state legislature and just saying, “Sorry, we’re calling bullshit. You don’t know what the fuck you’re talking about here, and you’ve got the foresight of a three-year-old in the throes of a tantrum.”

A particularly bold argument you wouldn’t see today in court  today is afforded to Dowling and Kinsella because of the time period in which this case is heard. In 1931, national alcohol prohibition was still in effect. In turn, the two make this (paraphrased) argument:  “Banning all forms of the plant because you don’t like one use of it is tantamount to banning grapes and corn because they can be turned into alcohol, or, for that matter, poppies because they can be turned into opium, you hypocrites.”

To which Overton responds:

The Marajuana plant is not one of the crops of this state. While the plant may be put to valuable uses, nevertheless, its deleterious properties may be fairly considered as outweighing those uses.

It is not a sufficient answer to say against this position that if the possession of the Marajuana plant may be prohibited in the dried or any other form, which includes the plant in its growing form, why not, by a parity of reasoning, prohibit the possession of corn, because whisky may be made out of it, or the possession of grapes, because wine may be made out of them, or the possession of poppies, because opium may be extracted from them, if such be so with the poppies grown here. The situation, however, is entirely different as to these. Not only are whisky and wine less injurious than Marajuana, but it is far more difficult to manufacture them than it is to prepare the Marajuana plant for injurious purposes. Moreover, to suppress the possession of all things out of which whisky or wine may be made would come near destroying civilization itself. As to poppies, if opium may be extracted from the species, sometimes grown here, it is obvious that the extraction is too difficult to accomplish to be carried on clandestinely to any extent, and, if it should be done openly, the manufacture and disposition of the product could be comparatively easily controlled by governmental regulations.

At 964.

From the government’s perspective, this is clearly a valid argument: “While this plant clearly has some beneficial uses, it also clearly has one really bad one. We would have a lot of difficulty regulating it, so, on the balance, it’s easier for us just to ban it from existence.”

This makes marijuana and its early prohibition kind of an anomaly for the legal world. Generally, law is the art of definition. Billable hours and game-changing legal opinions come from time spent identifying hairline fractures in meaning. Usually, lawyers do the exact opposite of what the Bonoa court does. Rather than just wiping hands, proclaiming “Good Enough!” and walking away, the usual reaction of the legal system is to attack a broad definition and tear it to pieces.

When your entire profession is built around defining things – using stock parts from the constitution, crafting custom parts with legislation, looking at industry magazines to get inspiration on how to modify your own vehicle, slapping on mens rea boosters and tricking out the paint job with exacto-sharp lines drawn in the shades of gray, things that are just as they are, like a marijuana plant, are a buzzkill. It doesn’t fit into the system. It’s not the type of thing you can dissect and hypothesize about and impute intention into.

In dealing with early marijuana prohibition, the legal profession seems to have been perfectly happy with this buzzkill. Nobody in the halls of justice knew quite what marijuana was, so they could either spend time figuring it out, or just call it “Mexican opium” and get on with their lives. They chose the latter, thus allowing early marijuana prohibitions to go into effect with relatively minimal critical challenge.

It’s like finding yourself standing in the kitchen of your childhood home, staring at your shoes after just listening to your mom answer your over-curious question about a word you’ve been saying on the schoolyard. Some mom-style lecture about what happens when two people love each other. You’re confused because it still doesn’t really make sense to you, and all you can think is that you’d rather stop thinking about it and just get on with the night. Don’t worry about it. That stuff is for the birds. And the bees too, I guess. Whatever, done with it. I wanna go back to playing some fucking Nintendo.

Which is a fine attitude when you’re a second grader who still has several years before he desires any closer contact with girls than that of the maximum range of his super soaker. However, it’s probably a less acceptable attitude when you’re setting down a block in the foundation of the next 80 years of American drug policy.

Bonus Case: You can find a lot of strong definition discussion in State v. Navaro, 83 Utah 6 (1933)

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