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the union. In a sense, then, the federal
law was redundant and unnecessary, as all states had a law prohibiting marijuana, and
many of them were more rigorous than the federal law.
Moreover, the design of the federal act was peculiar. It did not outlaw the possession of
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The Marijuana Smokers - Chapter 11
marijuana. Rather, it penalized the failure to pay the prohibitive excise tax of $100 per
ounce on the transfer of marijuana. However, if anyone attempted to comply with the law
and filed the necessary form with the Internal Revenue Service declaring his intention to
purchase a quantity of the drug along with the details of where, when, from whom, and
how much, he would automatically have incriminated himself under the state law.
Actually, the federal law was designed as a prohibitive measure. It was presumed that
nobody would ever comply, file the forms, and pay the tax. No illicit user of marijuana
could ever acquire the necessary license, even if he were willing to pay the tax. Because
of the double jeopardy feature of the act, the Supreme Court, in Leary vs. United States,
nullified it. It was impossible to comply with the law without facing sanction from the
state laws because federal officials passed on the intention-to-purchase information to
The law was not struck down because the Supreme Court justices thought that
marijuana should be legalized. Indeed, it is entirely possible (and even probable) that the
Marihuana Tax Act will be replaced by another federal statute outlawing the use,
possession, and sale of marijuana which is not marred by the self-incrimination feature. It
is only because there are effective state laws that the federal statute was nullified, and the
state laws will likely remain in force for some time to come.
The State Laws
It is, of course, impossible to detail the provisions of each state law within the space of
a few pages. Occasionally crossing the state line can make a dramatic difference. Until
1969, South Dakota imposed a ninety-day sentence for marijuana possession, while North
Dakota had a ninety-nine-year penalty. However, South Dakota stiffened its penalty,
bringing it in line with that of the other, more punitive states.4 Many of the states have
adopted the model Uniform Narcotic Drug Act, and thus, there is now a large degree of
uniformity of state marijuana laws.
Not only is California the most populous state in the union, it is also a trend-setting
state: much of what is fashionable in California later spreads to other states. There is no
question about the state's dominance in marijuana use. In terms of the sheer numbers, as
well as percentage, California has more marijuana users by far than does any other state.
(In addition, the most reliable arrest statistics come from California's Bureau of Criminal
We will now examine California's laws pertaining to marijuana. Section 11530 of the
Health and Safe
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