Recommendations Dealing With State Law

It is recommended either that the provision of the Federal act which exempts from the prohibition on unauthorized possession, possession (1) for personal use (of the possessor) or a member of this household, (2) for administration to an animal owned by him or a member of his household and which puts the burden of proving that the possession was not for any of the purposes mentioned on unauthorized possession with a purpose to sell or otherwise dispose of a depressant or stimulant drug, but exempting possession (1) for the personal use of a member of the possessor s household, or (2) for administration to an animal owned by the possessor or a member of his household, should be included in any State legislation. State law should not prohibit simple possession or use. 

A model State act should also contain a provision to the effect that nothing in it should be deemed to interfere with any right protected by that provision of the State constitution which in substance guarantees the free exercise of religion or with any right protected by the free exercise clause of the first amendment to the United States Constitution. 

It is also recommended that unauthorized manufacture of a controlled substance drug should not be the subject of a criminal prohibition under a model act unless it is committed with a purpose to sell or otherwise dispose of such a drug. When it is not committed with such a purpose it may appropriately be a civil violation. 

The recommendations herein are not based on the view that criminal treatment of use or simple possession is unconstitutional. It is recognized that policy and constitutional considerations may tend to merge. However, the recommendations are based on considerations of what is believed to be proper policy. While it is possible to argue that some of the reasoning Robinson v. California (5) indicates that punishment for use or even simple possession is unconstitutional, the Supreme Court there specifically stated that possession may still be treated as a crime (6). As to use, it was less clear (7). Most States and lower Federal courts have narrowly read Robinson and have held that use may still be made criminal (8). 

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Recommendations Dealing With State Law --Use and Possession Offenses---------------... 

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