The public is losing appetite for harsh marijuana law sentencing

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Depending on what state you live in, if you are arrested with a small amount of marijuana, you can either get a citation or a long prison sentence.

In states were marijuana possession is legal, there are still federal laws on the books that could land an offender in the federal penitentiary.

There’s been significant movement on the state level in Washington and Colorado, states that legalized the sale of marijuana this year, and New York – which legalized the use of medical marijuana earlier this month.

In a widely publicized case, Bernard Noble, a 45-year-old trucker from Missouri and father of seven with two previous nonviolent offenses, was stopped in October, 2010 on a New Orleans street with the equivalent of two joints in his pocket.

He was sentenced to more than 13 years. He was in Louisiana visiting his family, having left five years earlier when Hurricane Katrina destroyed his family’s home.

The Drug Policy Alliance has filed an amicus brief which cites states where punishment for non-violent offenders amount to a fine and charges that Nobles’ sentencing in Louisiana amounts to cruel and unusual punishment.

Then there is the case of Jeff Mizanskey, a Missouri man, who was arrested in December, 1993 and sentenced to life without parole.

This mosaic, which has some marijuana law offenders serving hard time and others walking away with just a warning, is also uneven according to race and social status.

If you are a minority or have prior offenses, sentencing is often harsher.

Last week, the New York Times reversed a decades-long stand and called for the abolition of harsh marijuana law sentencing. The paper’s Editorial Board wrote:

The social costs of the marijuana laws are vast. There were 658,000 arrests for marijuana possession in 2012, according to F.B.I. figures, compared with 256,000 for cocaine, heroin and their derivatives. Even worse, the result is racist, falling disproportionately on young black men, ruining their lives and creating new generations of career criminals.

Observers see the Times’ position as paving the way for a more unified federal policy advocating reduced sentencing guidelines.

On the local level, criminal defense attorneys who represent clients facing marijuana offenses are watching the legal landscape with caution.

Patricia Wright is a defense attorney who worked for three years as an Assistant District Attorney in the Bronx. She says, although New York presents a more liberal approach to the issue, the state still sees uneven enforcement and sentencing based on the background of the person arrested.

“In New York, which recognizes the medicinal use of marijuana and where the public has little appetite to exhaust resources for these minor convictions, users who openly violate the law can be arrested and engaged by the system if they lack discretion,” Wright said.

Wright told that, in New York, more and more cases are being thrown out at arraignment, with prosecutors seeing minor offenses as a waste of time.

But Wright cautions that defendants who have habitual arrests make it look as though they are thumbing their noses at the law. Those are the cases, she says, that still get traction in the courts.

Drug enforcement is big business.

More money is being spent for incarceration than education.

“Marijuana is the biggest cash cow,” says Neill Franklin, the Executive Director of LEAP, (Law Enforcement Against Prohibition). “The distinct odor of marijuana is the one thing that gives probable cause, and from there, other offenses are discovered. Law enforcement fears losing marijuana as a means of probable cause.”

Franklin’s perspective is that with some 700,000 arrests per year, there is a lot of profit potential in seizures.

Cars, homes, farms and property are subject to liens. This income goes straight to the state and local government’s bottom lines. In addition, since the beginning of the Nixon era “War on Drugs” that started in 1971, drug arrests and seizures have become an important aspect of law enforcement’s identity.

From locker searches in schools to the release of pictures showing bales of apprehended plants, drug arrests and seizures have perhaps become more tangible than terrorism and immigration enforcement.

“Federal grants are given to local law enforcement based on their drug enforcement statistics,” Franklin said. “That is plenty of incentive to make arrests. But there is no quality or follow up showing how these arrests are impacting people in the community or how those arrests for minor drug offenses shut people out from earning a legitimate living.”

Franklin suggests that attention should be turned to giving assistance to released drug offenders who compete their sentencing so that they do not turn to the drug trade as the only viable employer.

That sentiment was also echoed by Patricia Wright.

“As I counsel clients facing sentences for non-violent marijuana convictions, I think the public’s general position when it comes to marijuana is that of tolerance.” Wright said. “People recognize that marijuana has medicinal purposes. It generally makes people non-violent, in stark contrast to alcohol and other drugs. If left up to a jury, a lot of the harsh sentencing you see across the country might not have happened. The law has to follow the general opinions of the communities served.”