Most of us remain mystified that Dzhokhar "Jahar" Tsarnaev was one of the Boston Marathon bombers -- he seemed so normal, so American. He was a high school athlete -- wrestling team co-captain -- and for many years lived a seemingly ordinary life with typical ambitions.
What is most striking about the reportage is that for every person interviewed about either of the brothers, one of the strongest signs of their otherwise normal "American-ness" was their marijuana use. It seems everyone who knew them characterized their embrace of pot smoking as evidence of their integration into the norms of American student life in high school, college and young adult communities -- even if they sometimes were obnoxious neighbors throwing loud, drunken parties.
In the Washington Post, the New Yorker, the Atlantic Wire, and USAToday, the story is the same. All the statements flatly contradict the myths of 1930s anti-marijuana ideology still repeated in law enforcement anti-drug classes that marijuana use is a cause of deep deviance or violent behavior.
The description of marijuana use as the mark of a "normal," socially well-adjusted young American adult is therefore remarkable.
Those who knew the Tsarnaev brothers who are telling reporters what they know about them are not characterizing their Cannabis use as in any way deviant or threatening. At worst, Dzhokhar was not a very serious student -- like a great many of his peers. Second, indeed, when Tamerlan Tsarnaev said he was no longer going to be using Cannabis because of his religious preoccupation, this was seen as suggestive of the threatening change in his personality. Finally, the news stories of these interviews are blasé about their sources' interpretation of marijuana as a marker of being a normal young American in the Boston suburbs.
I think there is a policy conclusion suggested by these characterizations which is that the prohibition of marijuana use is no longer justified. Considering that this is, to date, the most heinous crime of the year, there is an almost complete absence of any evidence that anyone any longer feels that marijuana use is wrongful -- even when the marijuana users in question are presumed to be cop-killing mass murderers! I am using the term "wrongful" to mean an act that the public agrees causes an injury to another, thus deserving punishment by the state.
Without an agreement by the public that conduct is wrongful, the punishment of such conduct by the state is immoral. We see that in the case of sexual acts between adults. States may no longer punish acts of sodomy or fellatio, and to imprison an adult for simply for engaging in such an act with another would be an immoral use of government power (See Lawrence v. Texas, 539 U.S. 558 (2003)).
The prohibition of marijuana use is similarly immoral -- not only because it infringes on the inherent autonomy of individuals to make choices that are not harmful to others (which is true), but because the state lacks the moral authority to deprive liberty for conduct that is not wrongful. This is a subtle but important distinction, most elegantly explained by Prof. Douglas Husak at Rutgers University.
There is not yet an American consensus that people have the "right" to use marijuana the way there is a consensus that people have a First Amendment right to choose what book to buy in a bookstore. But there is a consensus, I think, that the government has no authority to punish behavior that is not wrongful. The U.S. and state constitutions never convey such authority to the government. For example, if meat-eaters elected a majority of the legislature, they would not have the moral authority or constitutional power to pass a law to provide for imprisonment of persons who eat soybean-based artificial meat, no matter what kind of health rationale was proffered. The eating of such products is not wrongful.
Completely unconsciously the national conversation about marijuana use in the Tsarnaev case tells us marijuana use is widespread and normal, the opposite of immoral, violent, deviant or wrongful behavior!
Behavior that the public does not believe is wrongful cannot be punished in the name of that public.
Until majorities of the usually fearful legislatures concur with the public's view, courts should be able to rule when a law no longer enjoys a moral consensus that prohibited conduct is wrongful, they have the power to uphold individual liberty and invalidate the continued enforcement of such unsupported laws when enforcement can subject them to detention or imprisonment.
When the Tsarnaevs were identified as the bombing suspects, Chechens, other Central Asians, and Muslims broadly feared they would be condemned or harassed by irrational generalizations. When their pot use first surfaced, some advocates of marijuana legalization were similarly afraid that all marijuana users would be tarnished, but none of us foresaw that marijuana use instead was seen as a sign of their integration into our culture and evidence of the inexplicable nature of their involvement in these acts of terror.
Certainly these two young men became quite twisted, but like other mass murderers -- from Jared Loughner to Adam Lanza -- marijuana had nothing to do with it. It is time the political conversation about marijuana catches up with the ones being held by the American people.
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