[Table of Contents, p. 1]
The Atlantic Monthly
Volume 274, No. 3
[Page] 84: Marijuana and the Law
Nowhere are the perverse consequences of mandatory-minimum sentencing more apparent than in the enforcement of marijuana laws. Minor offenders now crowd federal and state prisons, at a time when many of those convicted of violent crimes are quickly returned to the streets.
by Eric Schlosser
[A small graphic on the table of contents page shows a cartoon of a hand holding a pot leaf.]
Marijuana and the Law - the text
(If the Atlantic Monthly server is down, read Portland NORML's version.)
[from The Atlantic Monthly, September 1994, pp. 84-86, 88-90 and 92-94. Not included at the magazine's web site are the original graphics, again by Seymour Chwast. Less cartoonish than in the August article, these include a lit joint, burning in repose (p. 84); a hand holding a pot leaf (p. 85); the same hand, handcuffed (p. 88); and then the hand holding a vertical bar in a prison cell (p. 93).]
Letters, The Atlantic Monthly, December 1994 [pp. 10-11 & 14].
The articles on marijuana by Eric Schlosser in your August and September issues ("Reefer Madness" and "Marijuana and the Law") ignored arguments that marijuana is harmful and represents a danger for drivers and operators of heavy equipment.
Schlosser says that marijuana use among adolescents appears to have declined as a result of their awareness of its potential harm to health, not because they fear punishment. Adolescents tend to give little consideration to either their future health or present risks. But they do understand discipline. We need to identify more users of every age and to impose short-term punishments, including arrest, jail terms, and significant fines. This would deter users, and at the same time reduce the number of dealers and thus the number of people serving long prison sentences.
Eric Schlosser has highlighted the most frightening aspect of mandatory-minimum sentences: the awesome power now vested in the U.S. attorneys who consider the exercise of compassion a sign of weakness. According to Deborah Daniels, the U.S. attorney in the Southern District of Indiana from 1988 to 1993, for the intent of Congress to be implemented, justice has to be sought without the exercise of discretion. As a result, Schlosser writes, "the policy of her office was to seek conviction on the most serious readily provable charge - in every case, without exception." Daniel's statement comes as no surprise to those of us who deal with attorneys like her on a regular basis.
But of course this policy is favored only when it is convenient for the U.S. attorney's office, and Daniel's behavior in the Mark Young case is a good example. Daniels did, in fact, exercise a significant amount of discretion when she offered Mark Young a reduced sentence for his cooperation - even when she knew that Young had little or no information of value to offer her. When he refused, she charged him in a manner that assured a life sentence.
Is it any wonder that defendants who have agreed to cooperate testify untruthfully to save themselves from such a draconian criminal-justice system? If Daniels really believes that "the pressure to cooperate has (not) diminished the quality of testimony in court," she is very naive. A more likely explanation is that for her, and for many other U.S. attorneys, the means have become the end.
Mark A. Kaplan
The question is not "How does a society come to punish a person more harshly for selling marijuana than for killing someone with a gun?" The question is "What happens to a society that equates robbery, rape, and murder with selling someone a safe, nontoxic vegetable?"
Our laws are a codification of our values, and our laws say this: if O.J. Simpson sells marijuana, then, just like Mark Young, he should receive mandatory life, without possibility of parole. But if all he does is commit murder, and no drugs are involved, then his crime is not so bad. Five or ten years will be enough.
These laws are morally bankrupt.
Your recent articles on marijuana laws say more about the hopelessly dysfunctional nature of our criminal-justice system than about the irrationality of marijuana laws and enforcement patterns. Having interned as a law student in the offices of both a county public defender and a prosecutor, and having served as counsel to the U.S. Senate Judiciary Committee, I have seen up close the demonic spirit that possesses our courts at work.
"Justice" - whether in its philosophical or in its theological sense - has virtually nothing to do with the criminal process in our country. Rather, the system rewards winning, pure and simple. Defenders try to get people off, regardless of their anti-social behavior and future destructive potential. Prosecutors try to maximize sentences, regardless of the violence done to families and the expense to society. Judges, political appointees thoroughly familiar with the reality of the process, play referee. Members of Congress and state legislators, engaged in their own endless cycles of winning and losing, take the cynical and irrational stand that garners votes. The absurd posturing from both sides on the so-called "crime bill" in this past session is perhaps the nadir of such cynicism.
Your coverage of alternative views and iconoclastic positions is always interesting and usually thought-provoking. However, Eric Schlosser's feature on maximum drug-related sentencing was hardly up to the standard I expect. I take exception on a few major points.
One is the notion that because we have 300,000 people in prison for drug-related crimes, we have too many criminals. Actually, a smaller percentage of our total population is in prison than before. We just stopped building prisons to keep up. The numbers sound large, but with a population closing in on 300 million, we can neither stop building prisons nor tolerate the "wild west" criminal activity that might have slipped by in the past.
Schlosser's intent seemed to be to persuade readers that most of these 300,000 drug offenders were in for "selling a few pounds." But drug-related crimes are among the most pernicious and vicious, with innocent children often being in the crossfire of drug dealers fighting for schoolyard "turf." Ask the parents of the three young children murdered by warring drug dealers in Chicago last summer how they feel about men selling a few pounds of dope.
Mark Young was aware of the risk he took when he sold a few pounds. Why should he not be held responsible for his actions?
Eric Schlosser replies:
There is little evidence that sending young people to jail deters marijuana use. Several studies have failed to find a correlation between the strictness of a state's marijuana laws and its rate of marijuana use. Holland decriminalized marijuana in 1976, and marijuana use among Dutch seventeen- and eighteen-year-olds declined by 40 percent over the next decade. Underlying cultural forces, not laws, play the greatest role in the rise and fall of drug epidemics. Nancy Starr is correct in noting that accidents are one of the real dangers posed by marijuana.
David Schlesinger, however, is quite wrong about the rate of incarceration a century ago. In 1880 there were approximately 30,000 people in American prisons and reformatories, for an incarceration rate of about sixty-one prisoners per 100,000 in the general population. The U.S. incarceration rate climbed to about 100 per 100,000 in 1920 and remained at that level for the next fifty years. Today there are roughly 948,000 men and women in American prisons. Our incarceration rate has now reached about 350 per 100,000 (almost six times as high as that of a century ago). While the number of drug offenders being sent to state prisons rose by 1,100 percent from 1980 to 1992, the number of violent offenders who were being imprisoned increased by only 50 percent.
Marijuana offenders are not often found exchanging gunfire over schoolyard turf. In 1992, of the marijuana felons sent to federal prison 58 percent had no relevant criminal history at the time of sentencing; 91 percent were not considered organizers, leaders, managers, or supervisors of any drug organizations; and 92 percent did not own a firearm at the time of their arrest.
Mark Young has accepted full responsibility for his crimes, but considers the punishment administered by the government to be excessive. The U.S. Seventh Circuit Court of Appeals recently agreed with Young, nullifying his mandatory life sentence and returning his case to Judge Sarah Evans Barker. The appeals court ruled that Young should have been sentenced only for the pounds of marijuana that he brokered, not for the thousands of marijuana plants grown by Ernest Montgomery and Claude Atkinson. Judge Barker may give him a new sentence of anywhere from ten years to life. The U.S. Sentencing Guidelines recommend about eleven years, without the possibility of parole.
Postscript: Eric Schlosser revisits this topic in an April 1997 Atlantic Monthly article titled "How Marijuana Causes Insanity." The article, with graphics, is posted at the magazine's Web site at http://www.theatlantic.com/atlantic/issues/97apr/reef.htm.to the Articles directory
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