Timothy Leary, the LSD guru, was arrested in the 1960s on marijuana charges. His lawyers worked tirelessly to get him off, going all the way to the US Supreme Court. Ironically, Dr. Leary’s success at the Supreme Court could invalidate the recent legalization of recreational marijuana.
The story began in 1965. Tim Leary wanted to visit the Yucatan. He gathered up his girlfriend and his two kids and drove south from New York. When they reached the border crossing at Laredo, Texas, the Mexican authorities refused to allow them to enter Mexico. So they turned around at the border, passing through the US port of entry on their way back into Laredo. The Court of Appeals later described what happened:
“The U.S. inspector observed some vegetable material and a seed on the floor of the automobile which appeared to him to be marihuana.” 383 F.2d 851.
This “observation” resulted in a full search, which turned up “three partially smoked marihuana cigarettes [and] a small quantity of semi-refined marihuana.” Id.
Dr. Tim was charged with the violation of three laws: drug smuggling; transportation of illegal drugs; and failure to register for and pay the tax imposed by the Marihuana Tax Act. Ultimately, the drug smuggling charge was tossed out, for the obvious reason that Leary never entered Mexico, and therefore had not smuggled anything across an international border. He was convicted on the other two charges and sentenced to 30 years in federal prison, 20 years on the transportation charge and 10 additional years on the tax charge.
These convictions were appealed all the way to the US Supreme Court, which reversed the convictions.
What remains important today is the Supreme Court’s analysis of the Marihuana Tax Act.
Tim Leary clearly violated the tax law. He knowingly transported or concealed marijuana and failed to register for or pay the Marihuana Tax. End of story. Under the letter of the law, he was guilty as charged on that count.
When the case reached the Supreme Court in 1969 (Leary v. United States, 395 U.S. 6), Leary’s lawyer argued that Leary could not have complied with the requirements of the tax law without incriminating himself. Therefore, he argued, the tax law was unconstitutional and Leary’s conviction should be thrown out.
The Supreme Court agreed with Leary’s lawyer and reversed the tax conviction, holding that the tax law violated Leary’s Fifth Amendment protection against self-incrimination.
Note the parallel with California Proposition 64. Marijuana is still illegal under federal law. Prop 64 sets up a system for taxing marijuana. If you register for and pay the tax, you are admitting that you are violating federal law. If the feds prosecute you, this admission could be used in court as evidence against you.
Fortunately for people who are in favor of legalizing recreational marijuana, there is an important difference between Prop 64 and the Marihuana Tax Act. The Supreme Court in Leary v. US noted that the Marihuana Tax law was designed to facilitate criminal prosecutions. The Court cited evidence that the bill’s purpose was “not only to raise revenue from the marihuana traffic, but also to discourage the current and widespread undesirable use of marihuana by smokers and drug addicts.” The Court considered this prosecutorial purpose significant in deciding that the law violated the Fifth Amendment.
Prop 64 can be distinguished from the Marihuana Tax . It is not designed to discourage the use of marijuana. Far from it. Prop 64 sets up a tax system that is intended to serve a normal regulatory function. That is, Prop 64 is a real tax, but the Marihuana Tax in the Leary case was a fake tax. The Marihuana Tax was designed to help prosecutors, not to raise revenue. Prop 64 is intended to raise revenue, not to help prosecutors.
Still, the issue of self-incrimination is potentially present in Prop 64. As yet, there has been no published court opinion deciding whether Leary v. US renders all marijuana taxes unconstitutional. The issue has been raised in a case filed in Colorado by an advocacy group seeking to invalidate the Colorado marijuana tax law, but no published decision has been issued in that case. So, at the moment, the impact of the Leary case is uncertain.
Timothy Leary was strongly in favor of the legalization of marijuana. If he thought that he might be responsible for undermining the legalization of marijuana, his ghost would come howling at Burning Man.