Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Just say no

On the heels of the Obama administration's announcement that it was no longer going to prosecute those in "strict compliance" with a state's medical marijuana policy came news of this latest Gallup poll:

marijuana


California was the first state to legitimize medical use, with Proposition 215 in 1996; thirteen other states have followed, including next-door Michigan.  That Ohio will "catch the fever" seems unlikely, given the Paleolithic inclinations of the legislature in matters of drug law.  In 2007, when the disparity between the much lighter penalties (mostly white) cocaine users got when compared to what (mostly black) crack users faced become impossible to ignore, the state Senate unanimously passed a bill resolving the problem -- by raising the penalties for cocaine to that of crack.  The effort foundered only when the enormous economic costs of imprisoning that many more people was pointed out.

Opponents have argued that medical marijuana laws are merely a stalking horse for legalization of the demon weed, and such laws send the "wrong message" about the dangers of drugs, and will lead to increased use, especially among impressionable teenagers.  There's some statistical dispute about the latter point -- California's studies show that usage among teenagers has actually declined by 50% since the law was adopted, while a Federal study notes that teen use is higher in states with such laws (8.4%) than in states without (6.7%.).  

There's probably something to the first point, though; many of the same people pushing -- pun fully intended -- medical marijuana also promote full legalization.  And not without success; a number of municipalities have legalized it or adopted "low priority" enforcement policies, and last year Massachusetts voters, by a 2-1 majority, approved a law making possession of less than an ounce of marijuana a civil offense punishable by only a $100 fine. 

The campaign for legalization has played out over the past 30 years with dueling studies concerning the harmfulness of the drug.  Some are simply goofy, such as this Reuters story about a study which purported to show that "heavy marijuana use" could increase one's risk of a heart attack.  If you actually read the story, you find out that "heavy" really means "heavy":  users averaged 11 to 50 marijuana cigarettes a day.  (And at that, the study's conclusion was that this would "perhaps" increase the chances of a heart attack or stroke.)  Still, most parents I know -- a lot of whom smoked a healthy amount of weed in their day -- wouldn't adopt an attitude of indifference to their own kid using it.

I'm perfectly willing to concede that marijuana has some risks.  The problem is, I don't see those risks being worth the $10.7 billion we spend on enforcement of marijuana laws each year, or the 800,000 some people we arrest for breaking them.  You can talk all you want about the dangers of marijuana, but its biggest danger by far is that you can get arrested for using it.

It may well be that other people have come to the same conclusion, and that the transition from medical marijuana to decriminalization will lead to full legalization.  It's somewhat interesting that the marijuana legalization movement has now actually splintered, with "cannibusiness" advocates -- those who propose legalization as a way of providing badly-needed state revenues by regulating and taxing the product -- being attacked by those who argue that people should be free to grow it and use it without any government oversight.

And it may be that the biggest problem for enforcement of marijuana laws will come from an unlikely source:  the jury box.  Last week I came across the 8th District's decision in State v. Williams, involving two defendants charged with trafficking in marijuana, which raised the intriguing issue of whether the trial court had erred by declaring a mistrial during voir dire and empaneling a new jury because the original panel "wasn't taking marijuana seriously enough."  They certainly weren't; as the court's opinion notes:

The situation in this case included two prospective jurors who thought marijuana should be legal, and that fellow prospective jurors were openly laughing between themselves at the prospect of serving on the case. Despite this, the court tried at length to rehabilitate one of the jurors on this issue, only to find his beliefs shared by other potential jurors.

The panel concluded that "in such an instance, it was not an abuse of discretion to declare a mistrial."  Hard to fault that conclusion from a legal standpoint; obviously, there aren't any constitutional ramifications to declaring a mistrial before the jury is sworn, and a lot worse things than this have been done in the name of "judicial discretion."  Still, the court's conclusion that a jury of one's peers doesn't include Cheech and Chong is a little unsettling, if only because one has trouble imagining a trial judge deciding to tell the jury panel to trudge back down to the 4th floor en masse because they're taking marijuana too seriously.

One of the things I tell jurors in voir dire -- and yes, I stole it from someone, but he stole it from someone else -- is that this is the one time the government gives them real power.  Sure, you could be one of the 66,882,230 people who voted for Barack Obama, or the 2,133,705 who voted for Sherrod Brown, or the 157,246 who voted for Dennis Kucinich, or the couple hundred who voted for the village councilman, and in the broad scheme of things, none of those votes meant squat.  But if you're one of the twelve in the jury box, and the government wants to convict someone, and you say no, he's not convicted.

The biggest reason that the number of executions has dropped to the lowest level since capital punishment was reinstated is that juries stopped voting for the death penalty, because of alternatives like life without parole, or because of publicity about wrongful convictions.  The same thing is eventually going to catch up to proponents of the drug war, too.  Just say no, indeed.

Search

Recent Entries

  • June 23, 2017
    Crime and the First Amendment
    Facebook and sex offenders, and encouraging someone to kill himself
  • June 20, 2017
    What's Up in the 8th
    I come a cropper, plus inventory searches and mandatory probation
  • June 19, 2017
    Case Update - SCOTUS
    What's coming up in the US Supreme Court in the next two weeks
  • June 12, 2017
    What's Up in the 8th
    After weeks in the desert, we come upon an oasis of defense wins
  • June 7, 2017
    A switch in time
    Why what the Supreme Court did in Aalim II and Gonzales II is a bad thing
  • June 6, 2017
    What's Up in the 8th
    A turnabout on prior calculation and design, and harmless error in all its manifestations
  • June 5, 2017
    Case Update
    A death penalty case, fourteen years after the crime, and we're just getting started. And two appellate decisions on search and seizure.
  • May 31, 2017
    What's Up in the 8th
    "What's a law enforcement accountability activist?" asked someone never, but the answer is here. Plus, cell phone experts, joinder, and the fading glory that was State v. Hand.
  • May 30, 2017
    Case Update
    One searches SCOTUSblog in vain for decisions which would be of interest to the uncounted hordes of this blog's regular readers; one of the Court's opinions last week deals with the Hague Service Convention's rules on international service by mail,...
  • May 25, 2017
    "Clarifying" post-release controls
    A look at the Supreme Court's decision in State v. Grimes