Special Report: What to do with weed?

Gary B. Gray • Dec 2, 2013 at 4:23 PM

A former state prosecutor pushing to decriminalize marijuana says archaic laws and unfounded fears have stifled individual liberties, filled jails and wasted taxpayer money on what he considers a victimless crime.

Doak Patton, who served as an attorney for Tennessee’s 22nd Judicial District, is now president of Tennessee’s National Organization for the Reform of Marijuana Laws, an organization working with legislators to change laws regarding medical marijuana as well as possible legalization for recreational use.

“The war on drugs is an absolute failure and we need to stop wasting our money on marijuana prohibition,” he said from Nashville this week. “As far as costs to individual lives, it’s unbelievable. It’s a victimless crime, and I don’t see why we’re putting people in jail and on probation for possessing relatively small amounts of a harmless substance.”

Nationwide support for legalization has been rising steadily since the 1980s, and proponents of legalization hit the 50-percent mark in the Gallup Poll for the first time in 2011.

“I hope not,” Washington County Sheriff Ed Graybeal said when asked if Tennessee might be headed toward legalizing the drug. “Other states may legalize it and put taxes on it, but I think it will just cause more people to go around that tax to get it. Most of the crime we have, maybe 95 percent of those being committed — for example, burglaries — are being committed to get money for drugs.”

Legislative push and pull

Patton called Graybeal’s estimate “crazy.”

“I agree there are people committing crimes to support their drug habit, but I don’t think you can put marijuana users in that category,” Patton said. “It’s certainly a drug, but so is caffeine. No drug user is going to be solely addicted to marijuana, if that’s possible. I’ve yet to meet a serious marijuana addict.”

In April, a Hamilton County grand jury recommended legalizing possession of small amounts of marijuana. In its report to Criminal Court Judge Rebecca Stern, the panel said such a move would reduce the burden on the courts, and it suggested the legislature consider taking such a measure.

Meanwhile, legislators from 13 states (including Washington and Colorado) and the District of Columbia have pledged their support and co-sponsorship for a U.S. House of Representatives bill, the “Respect State Marijuana Laws Act of 2013,” which will prohibit the federal government from interfering with a state’s marijuana laws. It would not legalize marijuana in these states, but it would remove federal barriers to legalization and allow states to freely write their own marijuana laws.

U.S. Rep. Steve Cohen, D-Memphis, was an original co-sponsor of this bill and has been vocal about what he called injustices in the penal system and the criminalization of drugs.

Cohen said the following to Attorney General Eric Holder in May during a House committee hearing: “One of the greatest threats to liberty has been the government taking people’s liberty for things that people are in favor of. The Pew Research Group shows that 52 percent of people do not think marijuana should be illegal. And yet there are people in jail, and your Justice Department is continuing to put people in jail, for sale, and use, on occasion, of marijuana.”

A few months later, Holder told the American Bar Association’s House of Delegates about a plan to scale back prosecution for certain drug offenders, saying they would no longer be charged with offenses that “impose draconian mandatory minimum sentences.”

Is lighting up immoral?

The Tennessee Bureau of Investigation places marijuana use in the category of “crimes against society,” which include drugs, prostitution, gambling, pornography/obscene material and weapons violations. Marijuana is legal in two states. Prostitution is legal in Nevada. Gambling is legal in several states. Pornography, if obtained and viewed by an adult, is legal nationwide. Weapons themselves are legal to own in most every state and conceal and carry permits are issued by a number of states.

In 2012, crimes against society increased by 6.3 percent over the previous year statewide, the TBI’s Crime Statistic Unit Report said. That’s more than crimes against property and crimes against individuals.

“If it’s the law of the land, then yes, I consider it a crime against society,” Graybeal said about marijuana use.

The percentage of Americans who say that smoking marijuana is morally wrong has declined since 2006, according to a Pew Research Center study. A survey earlier this year found that 32 percent of Americans say smoking marijuana is morally wrong, down 18 percent since 2006. Over the same period, the number of people who say smoking weed is not a moral issue increased from 35 percent to 50 percent.

“I think we need to stay away from imposing our morals on everyone else,” Patton said.

But opponents say research clearly shows marijuana is addictive and its use significantly impairs bodily and mental functions.

“Even where decriminalized, marijuana trafficking remains a source of violence, crime, and social disintegration,” wrote Charles Stimson of The Heritage Foundation prior to a failed vote in California to regulate and tax marijuana.

Stimson also said studies indicate legalized marijuana will provide nowhere near the economic windfall proclaimed by some proponents.

“There is strong evidence to suggest that legalizing marijuana would serve little purpose other than to worsen the state’s drug problems — addiction, violence, disorder, and death,” he said. “While long on rhetoric, the legalization movement, by contrast, is short on facts.”

Patton called Stimson’s remarks “harsh” and “hypocritical.”

“These laws are archaic,” Patton said. “Some people should be apart from society, but I’ve been on radio here several times in Nashville and challenged people to show me someone that overdosed on marijuana.”

Paying the price

In Washington County, drug possession — everything from heroin and methamphetamine to marijuana — comes with a larger financial penalty than crimes such as driving under the influence, assault and reckless endangerment.

For example, a person convicted of assault will pay a substantially smaller punitive price than someone caught for the first time with the equivalent of three teaspoons of marijuana.

Besides paying twice the cost in court fines, base probation for first-time possession runs about $35 a month. Tack on the arrest and summons fees of more than $1,200 and a $250 fine, and the costs near the $2,000 mark.

This doesn’t include attorney fees, possible costs for drug or alcohol courses ordered by the court or charges for first-time offenders to have the misdemeanor “expunged,” or taken off your record after a successful probation period.

A first conviction for domestic assault and a second subsequent conviction in Washington County carry with it no minimum fine. Meanwhile a DUI does not become a felony until the fourth offense, and a domestic assault can remain classified as a misdemeanor on three separate convictions.

“We don’t have anything, I mean nothing, to do with it after we make the arrest,” Graybeal said. “We have absolutely no influence on fines or court costs.”

Under Tennessee law, its is not only an offense to merely possess marijuana and other controlled substances, but a person also breaks the law when there is a “casual exchange” of any amount. Distribution also is illegal. According to state code, you are “distributing” when at least three teaspoons of the plant is exchanged. Money does not have to be involved.

According to state law, once that three-teaspoon, or roughly half-ounce, threshold for the manufacture, sale, distribution, or possession with intent distribute of marijuana is crossed, the penalty jumps from the lowest misdemeanor to a felony charge.

In a case where there is a casual exchange from an adult to a minor, the accused faces a Class E felony. The same is true if a person is convicted of two or more misdemeanors. A Class E felon must serve not less than one year in prison, and the jury can assess up to a $3,000 fine.

Drug court won’t target small-time users

Washington County recently announced its creation of a Recovery Drug Court, which gives non-violent offenders the option to work with professionals in the field to identify why they continue to use drugs.

The move was aimed at giving addicted dug users an opportunity to find — and stay on — the straight and narrow path.

Judge Don Arnold, who will head the new drug court, said the goal is not to end overcrowding in jails or to help offenders get out of paying fines. Rather, its purpose is to help people who are addicted.

“It’s a problem in the state of Tennessee, but this program has not been put together to stop overcrowding,” Arnold said. “And someone that comes in here charged with simple possession of marijuana — that’s not the type we’re looking for.”

Frontier Health will pitch in $70,000 annually and has hired a program coordinator to guide the court’s advisory group. Arnold said offenders will be assessed and that some of those qualifying for treatment will undergo “intense therapy.” He also said about $15,000 a year collected in fines that used to go directly to the state will instead be used to help operate the court. He could not say where the money was being directed before the change.

Patton said there has been a drug court in Nashville for years, and he agreed with Arnold that they are geared more toward heavy drug users.

“The underlying problem is addiction,” Arnold said. “The problem has been: Do we keep them in a revolving door, or do we try to give them some help?”

Arnold said he wanted to distance himself and the new court from any debate over legalizing marijuana and to never become an advocate for either side, but he also said he is aware of changing policies nationwide.

“Whether you like it or I like it, eventually it will be legalized in every state,” he said. “It seems to be moving pretty quickly, but I’ll leave that to the General Assembly to debate.”

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