CASUALTIES OF THE MARIJUANA WAR

It isn't just cancer and AIDS patients who are suffering because of
America's antipot hysteria. Hundreds of smalltime users are in jail
for life.

BY LOWELL WEISS

Notes of sanity have begun appearing in the great marijuana debate. In the
last election, Arizona and California voters passed, by wide margins,
referendums allowing for the medical use of marijuana if recommended by a
medical doctor. The Clinton administration, which had set its face firmly
against any form of legalization, even for medical purposes, convened an
expert panel under the auspices of the National Institute of Health to
study the matter further. The prestigious New England Journal of Medicine
has editorialized for a change of policy.

If these moves signal a cooling of the war on marijuana, they could not
have come at a more crucial time. As Eric Schlosser argues in a lengthy
article in the April Atlantic, the war has caused enormous collateral
damage not only to those in pain, but throughout the nation's courts and
prisons. Violent criminals, Schlosser writes, are being released early from
the nation's prisons to make room for the swelling masses of marijuana and
other petty drug offenders locked up with mandatoryminimum sentences that
carry no possibility of parole. Nonviolent marijuana offenders, especially
those sentenced in federal courts, often spend far more time behind bars
than murderers. Some are serving life sentences.

Schlosser won a National Magazine Award for his twopart series on
marijuana that ran in the Atlantic in 1994. Salon talked with Schlosser
about his recent findings, which he says suggests America is "caught in the
grip of a deep psychosis."

In some states, you write, the rate of incarceration for drug offenders has
increased so rapidly that new prisons would have to be opened every 90 days
to keep up at a cost of more than $100,000 per cell. With government
budgetcutting so in vogue, how did these huge costs escape politicians'
notice?

It's simple: Policy is not being driven by reason, it's driven by political
expediency. It's very similar to antiCommunism crusades of the 1950s. The
only politicians who feel secure enough to question our policies are those
who are out of office.

And, you say, liberals seem to be just as cowed by the hysteria as
conservatives.

Yes. As I point out in my piece, last year even liberals like (Sen.) Tom
Harkin (DIowa) and Sen. Paul Wellstone (DMinn.) lined up behind (Sen.)
Phil Gramm's (RTexas) proposal to revoke federal welfare and food stamps
from anyone convicted of a drug crime, even a misdemeanor. Politicians of
both parties insist on dealing with this issue almost exclusively through
the criminal justice system not through the public health system. If
you're an alcoholic, there are hundreds of rehab programs available; if
you're a drug abuser, the government would just as soon lock you up and
throw away the key.

How many marijuana offenders are serving life sentences?

The figures don't exist. None of the usual federal data sources keep track
of nonviolent marijuana cases as separate from other nonviolent drug cases.
But we know it's in the hundreds.

But they would be for the big dealers, not your average user.

Not necessarily. For example, Jim Montgomery, a paraplegic immobilized from
the waist down who used marijuana to relieve pain, was busted in Sayre,
Okla., with two ounces of marijuana in a pouch in the back of his
wheelchair. It was a first offense. He got life plus 16 years.

So, don't ever get busted in Oklahoma. Are there wide variations from state
to state?

Oklahoma is by far the worst in terms of length of sentence. New Mexico is
the most lenient. For less than 100 pounds, the maximum penalty is 18
months. For more than 100 pounds, the maximum penalty is three years.

When do the feds get involved?

Federal prosecutors have the right to press federal charges for any amount
of marijuana. But guidelines vary from region to region. In some districts,
a federal prosecutor will not press charges unless there are more than 100
plants involved, for example.

How has the Clinton administration performed in the marijuana wars?

Under Clinton, the number of marijuana arrests has gone up by more than 40
percent. In 1995, the most recent year we have data on, authorities
arrested 600,000 people for marijuana offenses more than ever before.
Next year's budget for the war on drugs is the largest in American history.

Yet he's being attacked because drug use has gone up during his presidency.
Should he be feeling defensive?

Yes, he does have reason to feel defensive. His lawandorder approach to
marijuana is destroying thousands of lives without demonstrably reducing
marijuana use. It is a failed policy. Arrests have reached an alltime peak
at the same time that use has tripled. People accuse junkies of behaving
selfdestructively, but in the case of marijuana, the government is even
more wedded to such behavior.

You write that a lot of the trouble is being caused by the mandatory
minimum sentence laws. How did they come about with respect to drugs?

In some states, these statutes have been on the books for more than 20
years. But the real turning point was 1986. And one highprofile case was
all it took. Two days after signing a lucrative rookie deal with the Boston
Celtics, star basketball player Len Bias suddenly died, allegedly after
smoking crack. The story became the nation's topic No. 1. Midterm
elections were around the corner, and (former House Speaker) Tip O'Neill
knew he had to do something, so he assembled his troops and in about six
weeks wrote and passed the most sweeping drugcontrol legislation in a
generation. There was no careful deliberation. There were no public
hearings on the mandatory minimum provisions. The result was devastating to
the criminal justice system.

How does the law work?

At the state and federal level, a mandatory minimum sentence is triggered
by the amount of drugs involved in a case not by a person's role in the
crime. Whether you're the guy driving the truck for $1,000 or you own a
fleet of trucks and are making tens of millions, you are subject to the
same strict penalties.

How much discretion do prosecutors have?

A lot. In many respects they now have more power to determine sentencing
than judges. It's up to the prosecutor to decide how much of the drug to
include in the indictment, and whether to file under a mandatory minimum
statute at all. They often use these statutes to plea bargain; the ability
to pile one mandatory minimum charge on top of another gives enormous
leverage to the prosecutor.

In my article I give a great example of just how much discretion
prosecutors have. Indiana Congressman Dan Burton, the Republican heading up
the House's investigation of campaignfinance improprieties, and a
supporter of life sentences for some marijuana crimes, has a son who has
gotten himself into a mess of trouble. Danny Burton II was busted for
driving about eight pounds of pot from Louisiana to Indiana. Six months
later, police raided his apartment and found 30 marijuana plants and a
shotgun. The feds did not press charges. Indiana prosecutors got his
charges dismissed. In Louisiana, he got off with community service,
probation and house arrest. Under federal drug laws, just for the gun alone
Burton could have faced a mandatory sentence of five years in prison.
Suffice it to say that most offenders don't have this kind of luck with
prosecutors.

Where do you stand on the debate about the health effects of marijuana?

The Lancet, one of the most influential medical journals in the world,
recently concluded and these are the exact words "the smoking of
cannabis, even longterm, is not harmful to health." I'm not quite that
categorical. It's clear that inhaling smoke is bad for your lungs. I also
believe that people who smoke marijuana on a daily basis put themselves at
risk of reversible shortterm memory problems. It's also clear that young
people shouldn't smoke pot. It's bad for athletic and academic performance,
and it can exacerbate emotional problems, too.

So can other substances, which are legal. Why is marijuana still such a
target?

I think it has everything to do with who those users are. This society does
not scorn all drugs. Alcohol is very respectable. We even allow beer ads on
MTV, a network aimed at people 1224 years old. But pot is different. In
America, pot has been associated with the wrong elements: Mexicans, blacks
and nonconformists of all stripes. The war on marijuana has little to do
with health. It has everything to do with culture. It's a moral crusade.
And moral crusades often have perverse results. In this case, we're giving
life sentences without parole to first offenders for small amounts of a
relatively harmless substance.

Besides the successful medicinalmarijuana ballot measures, are there other
encouraging signs on the horizon?

At the state level, legislators are getting fed up with mandatory minimums.
As prisons get more and more overstuffed, they're starting to look at
alternative sentencing like boot camps along with expanded drug
treatment. Last year in Ohio they decriminalized the growing of small
amounts of marijuana for personal use. The provision was tucked into a
larger bill, but nonetheless the bill received the support of the state's
conservative governor, George Voinovich.

At the national level, there's just extraordinary cowardice. Unfortunately,
I don't think we'll have any constructive changes in federal marijuana
policy in the foreseeable future. March 27, 1997

Lowell Weiss is a writer who lives in Boston. He was formerly a speech
writer for Vice President Al Gore and a staff editor at the Atlantic.