The steady drumbeat of news about legalization, decriminalization, and mass expungements of old convictions suggests the golden age of cannabis is upon us. Not so fast, it turns out. Marijuana may have conquered America’s hearts and minds, but the official War on Pot continues to sputter along, defying logic, ruining lives, and begging explanation.
A joint smoked on the streets of San Francisco or New York will only get you high. But in many small towns and cities across the country, just the odor of marijuana could lead to a conviction, if for nothing more than possession of paraphernalia. This disunited state of marijuana enforcement across the country is stark and disturbing.
In big cities it’s fraying the bonds between police officers and prosecutors. A family feud has broken out in the law enforcement community. For example, under new policies adopted by the Baltimore state’s attorney, you can get caught with 16 pounds of marijuana in your trunk, as did 30-year-old Dwight Chinyee of Winston-Salem in February, and end up as he did – with no charges. Not even a traffic citation. You’ll lose your stash in Baltimore, but not your freedom.
This shift to a “hands off” policy on marijuana by big-city prosecutors has spread to most major urban centers and it’s driving cops up the wall. A spokesman for the Maryland regional transit officers union called the Chinyee case “incredibly disturbing”, adding, “There is no doubt this individual will go right back to distributing illegal drugs as soon as he can.”
At the same time, multiple bills have been introduced in the Maryland legislature to make recreational cannabis legal. Go figure.
An investigator in the DA’s office in one of the nation’s largest metropolitan areas told The Marijuana Times, “The cops just hate us for not prosecuting marijuana busts anymore. They can’t meet their arrest quotas and that’s frustrating the hell out of them.”
In another corner of America, in Mississippi, a musician and Oregon medical patient named Patrick Beadle – stopped and found to have three pounds of marijuana in his car – is today sitting in a prison cell sweating out a three-year sentence for possession. Before the ACLU intervened, Beadle had been facing distribution charges that carry a maximum sentence of 40 years.
The situation is no less perplexing in places like Pennsylvania’s suburban and rural counties. While pot busts were plunging in Philadelphia, the surrounding counties were packing their courts and jails with marijuana possession cases. Between 2010 and 2016, possession arrests soared by about a third in relatively peaceful Bucks County. Some local municipalities racked up even bigger numbers. As a result, county jails – including Bucks County’s – are so overcrowded that defendants who normally would have been locked up for lack of bail are instead being furloughed to await resolution of their cases at home.
“Rising arrests seem to be driven more by a patchwork of policies and priorities that can change dramatically at the township line,” says Philadelphia cannabis columnist, activist, and journalism professor Chris Goldstein. In a column posted to news site Philly.com, Goldstein wrote, “Offenders caught in Pennsylvania’s criminal justice system over a few grams of weed face anything from a friendly discussion, or a ticket, to prosecution, a trial, jail, supervision, or worse; becoming a confidential police informant. It all depends on the attitude of the local police chief, the county district attorney, and more often the local city council.”
In non-urban communities where everyone drives, it’s a cinch for police officers to profile and pull over a likely pothead – say, a tattooed young man driving a beater covered with bumper stickers – and smell, or claim to smell, the odor of marijuana. That’s especially so now with the popularity of ever more “dank” strains. Police know that the vast majority of young defendants can’t afford effective counsel and will almost always choose to plead guilty. Cops with the most arrests always get a pat on the back from the chief.
Justice in America could hardly be less equal when Mr. Chinyee goes home to resume his life but Mr. Beadle faces years trapped in a crowded prison dorm, his life upended. How is this possible? Isn’t there a constitutional issue here?
To find out, The Marijuana Times consulted three constitutional scholars: Daniel C. Richman, a former federal prosecutor and now a law professor at Columbia University; John C. Coffee Jr., director of Columbia Law’s Center on Corporate Governance; and a noted federal appeals court judge who could only speak off the record. All three agreed on a key point.
“This is not actually a legal question,” Professor Richman said. “It’s a political question, and it’s a mess. Each state gets to make its own laws and even though the Feds could theoretically pre-empt them, they never do as a matter of policy.” Richman said it’s unlikely there will be a major case that makes its way to the Supreme Court, which might settle the question once and for all.
Professor Coffee pointed out that what’s happening today is similar to what followed the end of liquor Prohibition in 1933. “It remained permissible for many states to remain dry. Some did and others permitted the sale of alcohol only at state run stores. This could happen again. Although the Mississippi sentence (Patrick Beadle’s three years) is savage and unjust, do not think that an Oregon gun license is valid in New York.” All politics is local and so, it seems, is justice.
One of the under-reported ironies about marijuana and the law is that in jurisdictions where it’s legal and authorities have tried to crack down on the black market, the effort has had the opposite effect. Trying to shut down an illegal cannabis market only makes it bigger. Weedmaps, a cannabis information and ecommerce platform for consumers, recently issued a report on the inverse relationship between aggressive enforcement and the trade in illegal pot.
“Our research shows that there is a clear relation between illegal market share and the effectiveness of law enforcement in preventing illegal operators from reopening,” according to Weedmaps’ vice president for government relations, Dustin McDonald. “With a 50 percent or higher illegal market share (Seattle, Portland, Phoenix, and every state where recreational is still illegal), roughly 50 percent of illegal operators that are the subject of police raids will reopen.”
The Weedmaps study concluded that the most effective way to drive down illegal market share is for local governments to lower taxes on legal marijuana to make it more competitive, and permit a high ratio of dispensaries per population. The answer is convenience and price, not more arrests.
Until that golden age of cannabis finally dawns, equal justice in many American towns will remain a crapshoot.