THE CANNABIS CONUNDRUM

How can anybody involved in some aspect of criminal law not have mixed feelings concerning the prosecution for the use of cannabis?  The juxtaposition between a widespread casual attitude yet potential for rigid punishment is frustrating and disheartening. The inconsistency as to how the law is applied, as well as the hypocrisy between attitude versus enforcement, is aggravating.   

I’m hardly a pothead or big marijuana advocate. To me, weed, is no different than pepperoni pizza, root beer, a Twix bar or any other guilty pleasure; if I had some… well, whatever… if I never touched it again… whatever.  It’s just not that big of a deal.

I grew up in the 1970’s where pot was common place. Anything associated with counter culture or a modern, hip lifestyle inevitably had a certain pot component. Most places that sold records also acted as “head shops”. Zig-Zag and Big Bamboo (rolling paper companies) tee shirts were as common as the black rock concert tee.

You went to a party… weed was there;

Attending a concert… the arena wreaked of pot;

High school… the burnouts had their place and there was smokin’ in the boys’ room.  

I would imagine that anybody under the age of 65 would have been exposed to marijuana culture.   If you grew up where there was a harsh winter, you probably hung out in friend’s basements, converted attics or locked yourself in bedrooms. And what was exactly going on there as you and your friends spun Zeppelin, Floyd, the Stones and Jimi? Of course, that is a rhetorical question since I have a feeling, I know exactly what you were doing. 

I’m not saying marijuana is a positive for it is, indeed, a vice. However, so are potato chips, soda, tobacco products and beer. “Marijuana, that’s a gateway drug, it will lead to worse things.” Really?  Don’t we all know people who were characters, stoners, a bit on the crazy side…yet they grew up to become successful business owners, professionals, community leaders, parents, etc.  Don’t most people ultimately outgrow certain vices since, as you age, you tend to lean towards the mainstream?  I have seen certain potheads gravitate towards more serious vices yet, perhaps, that was more indicative of an addictive and self-destructive personality rather than from the actual herb itself.  I have seen the all-too-common scenario of people inebriated on alcohol do very bad things while, conversely, I’ve never seen anyone getting high develop a desire to do anything but eat food out of the container and have a strong desire to watch anything that is on television.  

In most facets of today’s culture, marijuana has been pretty much stripped of a taboo reputation and more relegated to a widespread, casual attitude.  Forget about movies aimed at stoners, when mainstream flicks like “It’s Complicated” feature movie icon Meryl Streep toking, it’s hard to say pot belongs to the counter culture…that is as mainstream as you can get.  Turn on any pop radio station and you’re likely to hear many hip hop acts, The Beatles, Bob Dylan, Tom Petty, and Miley Cyrus echo the sentiments of the population. These are mainstream songs, played on mainstream radio stations where the topic is celebrated, not condemned.  Television shows like That 70’s Show, American Dad, Mad Men, Parenthood, and The Office couldn’t take a more unabashed and informal approach towards marijuana use. Today, pot is a subject matter that entertains us while the irrational days of the oft-lampooned “Reefer Madness “are long gone.

In regard to criminal law; marijuana has had an evolution in the last 50 years. Whereas a joint may expose a person to just a fine today, in the past that same amount may have triggered a lengthy prison sentence. History should be a strong barometer for trends and trajectories. With the midterm elections just concluding, and more States allowing either the medicinal use of, or the legalization, the writing is certainly on the wall. Is it inconceivable that personal use of marijuana, on a national level, will be eventually decriminalized? [Excuse me, I have to take a break from writing this post because I need to check my cannabis stocks and marijuana mutual funds.]  Yes, decriminalization is only a matter of time.    

In the criminal justice system, a case that involves marijuana use may be impacted by the individual ideologies of the players in power; the judge and prosecutor. While I’ve seen some judges take the position that they will never incarcerate over the personal use of marijuana, other judges do not echo such sentiment.  For some judges, they will have no problem having marijuana act as the sole impetus for revoking a bond or violating court supervision. Smoking a plant that grows in nature could result in incarceration?! prison?!

I have a problem with blindly just following the law. History demonstrates that there have been some very oppressive and evil laws on the books.  Wasn’t one of the recent constitutional amendments to get rid of obsolete provisions within the constitution?  Technically, it is for the legislature to enact laws but some of the most dramatic, game-changing themes have emanated out of judicial rulings (Miranda v. Arizona, Gideon v. Wainwright, Roe v Wade, Brown v. Board of Education).  Inapplicable and irrational laws need not be enforced.  As most of us were preached to during our first year in law school, “the law does not operate in a vacuum”. Don’t like that I’m a proponent for challenging laws?  Kiss my  grits, anti-black, anti-Jew, anti-women, anti-Latino, anti-immigrant …there have been some horrendous laws on the books. If someone says “Jump!” to me, I would hardly respond by saying “How high?” If the law is out of touch then somebody, in a position of power, needs to have the guts to say something. This means you…Judge.

A horribly unfair aspect of marijuana (that I never see addressed in court)  is that pot has the capacity to act as a poor man’s medication. How frighteningly out of touch is the criminal justice system? The primary political issue facing our country is access to health care. Moreover, at a lower economic level, of course these unfortunates do not have appropriate health care. However, no matter how much money may be in one’s bank account, pain, stress and anxiety are universal. With so many taking a prescribed medication to deal with stress, wouldn’t you think the less fortunate also want something to take off that same edge? That is what marijuana is to some in economically depressed areas; it is a low cost and widely available stress reliever. If a white- collared defendant has an open criminal case and they are legally prescribed Xanax to deal with their stress from the consequences of their case, then that is okay. However, if a different type of defendant (you know…poorer, darker) smoked pot (they have no insurance so they can’t get Xanax or if they illicitly acquire it, then they are subject to felony prosecution) to deal with the same stress, their bond may be revoked.  It’s maddening and, in a way, is indicative of institutional racism and illogical insensitivity.   

As there is a national trend towards the legalization of a possessory amount of weed, then there must be a judicial interpretation that mirrors what the attitude is of the public. If the public doesn’t care about weed, then why are people having their lives ruined over it? How common are acquittals on possession cases, not because there was a great defense but, quite simply, because jurors  do not want to convict over the subject matter?  

Sending somebody to prison, over merely the use of marijuana, just because the law is on the books?  “I was just following orders” is hardly an acceptable justification when addressing morality. There can be a higher order than what may be codified.  The time has come where violating a probationer over the use of marijuana is wrong, forcing treatment programs for a non-addictive substance is antiquated, mounting forfeiture actions over a joint is mean-spirited, revoking bonds (where somebody is presumed innocent) over use can turn into is an obvious ploy to squeeze out a plea and criminal prosecution is utter hypocrisy.

Outside of court, a casual attitude towards pot is almost universal yet inside of court, it is hard to predict what will occur.  One judge may admonish while another may incarcerate…it shouldn’t be that way.

As the world is always changing so does the need for the criminal justice system. Judges need to do more than call balls and strikes, the lack of uniformity on this issue absolutely results in significant injustices.  Who wearing the robe will have the guts to stand up and address this problem?