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Persuading judges, jurors, and prosecutors about marijuana

Feb 23, 2010 Persuading judges, jurors, and prosecutors about marijuana

NOTE: Following is an article that I recently submitted for publication in the newsletter of the Maryland Criminal Defense Attorneys Association:

Here are some thoughts for persuading judges, jurors, and prosecutors for negotiations, trials, sentencings, and probation/parole violation hearings involving marijuana:

– In all likelihood, a small minority of convicted Maryland marijuana defendants will be sentenced under the medical marijuana sentencing scheme. Therefore, medical marijuana arguments alone are not enough in seeking favorable outcomes in medical marijuana cases.

– I have previously written in MCDAA newsletters, about medical marijuana defenses (see http://katzjustice.com/obtaining-a-maryland-medical-marijuana-sentence-on-multiple-plants/ and http://katzjustice.com/converting-a-40-plant-marijuana-felony-charge-to-a-half-ounce-misdemeanor/) and probable cause arguments involving marijuana smell (see http://katzjustice.com/time-to-distinguish-between-the-smell-of-burnt-and-raw-marijuana/).

– In the criminal justice system, marijuana gets lumped in all too often with more harmful drugs. It can be important to distinguish marijuana as meriting less concern than more harmful controlled substances, distilled as the “it’s just marijuana” argument.

Federal and state legislatures nationwide have acknowledged that marijuana is less harmful than plenty of other controlled substances by creating less harsh sentencing schemes for marijuana than with such controlled substances as cocaine and heroin. In Maryland, marijuana gets treated less harshly than cocaine and heroin for maximum possible penalties for misdemeanor and felony possession, by omitting marijuana felony possession from the mandatory minimum second felony offender drug scheme, through lighter treatment in the voluntary sentencing guidelines, and through mere fines for proving medical necessity in marijuana possession cases.

– All judges, prosecutors, jurors, and police are going to have preconceived notions about marijuana, through such factors as past personal marijuana use and personal observation (if any), observing its effects on friends and family members, and considering propaganda from all sides of the issue.

– Arguments from the marijuana legalization/decriminalization side include:

— Marijuana is less dangerous than alcohol.

— The entire marijuana plant offers strong medicinal, industrial, environmental, and personal benefits. The industrial and environmental benefits are perhaps most visibly promoted, unfortunately to the point of overhyping, by marijuana champion Jack Herer in The Emperor Wears No Clothes, which is available in full-text at http://www.jackherer.com/chapters.html.

As to marijuana’s personal and medicinal benefits, Harvard medical school emeritus professor Lester Grinspoon is a high-profile proponent with strong academic bona fides to back him up. He started studying marijuana in the 1960’s expecting to prove marijuana’s harm but then found the opposite to dominate. Eventually, he decided it a good idea to try for himself the marijuana he had been studying. He became a big fan of personal marijuana use ever since. Grinspoon says of marijuana: “Over the years, I have come to understand that marijuana is not just for fun, it’s not just for medicine, but there are other ways in which this high is useful … I began to realize that this drug, this plant, is truly remarkable, that it can be used to enhance various aspects of life.” “Pot Shots: The Faces of Marijuana in Boston,” by Chris Wright, Boston Phoenix, http://www.bostonphoenix.com/boston/news_features/other_stories/multipage/documents/01815009.htm.

Grinspoon said: “I came to realize that I was the one who was misinformed [about marijuana] – that despite my training in science and medicine, I had been brainwashed like just about every other citizen of this country.” “Pot Shots,” supra.

Grinspoon also said of marijuana: “Marijuana expands the breadth of variables one can bring to bear on a situation. It allows the intellect to visit parts of one’s consciousness that are usually off-limits … Cannabis has helped me make some important life decisions. This is something I’m glad I didn’t have to go through life without.” “Pot Shots,” supra.

– Arguments from the marijuana opposition include assertions that today’s marijuana is more potent than the marijuana smoked even a generation ago; marijuana is a gateway drug to more harmful controlled substances; marijuana is not FDA-approved and not enough is known yet about its safety; and alcohol is dangerous enough, and we do not need more dangerous drugs legalized.

Here are rebuttals for each of the foregoing four claims:

— The more potent that marijuana becomes, the less marijuana people need to smoke to obtain the same high or other benefits. Unlike wine, beer and other alcohol, marijuana use is not about finishing a serving of marijuana in one sitting. A marijuana cigarette may be extinguished for later use, and marijuana used in pipes gets burnt in small amounts and the rest can be saved for later. Marijuana used in baked goods also can be consumed in more than one sitting, as well.

— One scholarly study that helps debunk the argument that marijuana is a gateway to more dangerous drugs is “Predictors of Marijuana Use in Adolescents Before and After Licit Drug Use: Examination of the Gateway Hypothesis,” by Ralph E. Tarter, Ph.D., et al., American Journal of Psychiatry (Dec. 2006), http://ajp.psychiatryonline.org/cgi/content/full/163/12/2134.

— Harvard medical school emeritus professor Lester Grinspoon  estimates that at least $200 million is needed for studies to get a drug approved by the United States Food and Drug Administration. Absent huge financial donations from the likes of Bill Gates and George Soros to meet the FDA’s drug-study protocols, nobody is going to pay for such a study. Marijuana is unpatented, so pharmaceutical companies will have no interest in paying to get FDA approval for marijuana. With the FDA approval process too expensive for marijuana, Dr. Grinspoon points to persuasive anecdotal evidence of marijuana’s strong benefits and low risks as medicine. “Commentary: On the Pharmaceuticalization of Marijuana,” by Lester Grinspoon, MD,

International Journal of Drug Policy, 12 (5-6) (2001), pp. 377-383, http://rxmarijuana.com/Pharmaceuticalization.htm.

— As to the claim that we do not need to legalize additional dangerous substances, in what ways is marijuana more harmful than alcohol, nicotine and caffeine, with all being profoundly addictive, and marijuana nowhere near as addictive? How many people have died from a marijuana overdose, if such overdoses even exist? What percentage of people become violent after drinking many beers versus the percentage of people who become all the more mellow after smoking (or eating, in baked goods) even a small amount of marijuana?

– Recently, I spoke with a forensic chemist who typically testifies for the criminal defense side in drunk driving cases, about marijuana laws and the extent of marijuana’s benefits and harms. He believes very strongly in keeping marijuana illegal — even for medicinal use — and that its benefits are far outweighed by its risks and harms.

This forensic chemist talked of the presence of over 150 chemicals in marijuana, and of marijuana’s harms being like shooting a shotgun, having a minority of the pellets being beneficial — not being sure which of those pellets are beneficial — and having a substantial number of the pellets dangerous. He analogized to asbestos, which was used for many years before anyone found any harm from asbestos.

– Regardless of how accurate the above-mentioned forensic chemist is or is not about marijuana’s dangers, the late pharmaceutical and marijuana expert John P. Morgan, M.D., made a strong argument that marijuana is comparatively safe, in reference to alcohol and other recreational drugs, and its potential benefits are enormous. As to drivers under the influence of marijuana, he believed they often slow down. Even if marijuana turned out to be very harmful, which Dr. Morgan discounted, he would have found that to be all the more a good reason to have marijuana — along with all other drugs — legalized, regulated, and better controlled through the marketplace, and removed from the dangers of the current illicit drug market. “Why Marijuana Should Be Legalized: An Expert’s Perspective,” http://www.youtube.com/watch?v=9KLy150NR_U&eurl=http://www.celebstoner.com/news/marijuana-news/marijuana-advocate-author-dr.-john-p.-morgan-1940-2008.html.

– Local martial arts practitioner and massage therapist Matt Stampe takes the following balancing approach with marijuana use:

— “[M]y Chinese doctor used to grow her own herbs and they really were helpful. I don’t see why marijuana which is ‘yin’ energy could not be included with other powerful herbs.

— “As a licensed massage therapist- I have mixed views on the legalization of marijuana. First it is still a toxin to the lungs, second it affect QI ‘chi’ flow in the body, and can damage the ‘Shen’ or Mind and ‘Jing’ or essence of reproduction. Marijuana does pose a threat to our society in that is can make people dumb, create accidents, and make bad decisions. However I do stand for its healing benefits and some of the results for AIDS, Cancer, and other uses that help the individual and economy.”

– When defending students at parallel student disciplinary proceedings for marijuana possession, it may be beneficial to remind the student disciplinary panels that in 2006, nearly two-thirds of voting University of Maryland students voted to soften penalties for marijuana in student disciplinary proceedings. http://cannabisnews.com/news/21/thread21731.shtml. The school administration left the vote as advisory only.

– In such jurisdictions as Prince George’s County, where prosecutors routinely reduce marijuana felony possession charges to simple possession for quantities under two ounces, watch out for judges who will be inclined to sentence more harshly when considering the marijuana quantity involved and when considering the later-amended felony possession charge on the charging document.

Both for making a preemptive strike under such sentencing situations, and for arguing to prosecutors and factfinders that large quantities are for personal use only, consider that marijuana is very economical to buy in bulk for personal use, making it significantly less expensive than purchasing in small quantities. Pricing information on marijuana is routinely carried in High Times magazine. Pricing information together with testimony from a suitable medical doctor (about marijuana dosages) can help counter arguments that marijuana amounts over an ounce are intended for distribution.

– Some dealers of marijuana and other drugs throw in small baggies for resale purposes. Therefore, the mere possession of small empty baggies along with one large bag of marijuana is not sufficient by itself to prove intent to distribute.

CONCLUSION

Although many of the foregoing views are applicable to arguments for reforming the drug laws, many of these arguments can also be effective in negotiating marijuana cases (and in some instances other drug cases), arguing the cases at trial, and arguing at drug sentencing.

A criminal defense lawyer’s arguments that marijuana should be treated as a less harmful drug than cocaine and heroin should not diminish the same lawyer’s effectiveness in arguing for other clients that stronger drugs also should be dealt with more heavily with probation supervision and treatment than with lengthy incarceration.

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