Justice Goes To Pot

By B. J. Oppenheimer

As you read this, I'll probably be behind bars, serving a possible five to 40 years in federal prison with no hope of parole. My house will have been confiscated by the government, and a fine of $340,000 will have been levied against me.

I'm a nonviolent offender with no prior record. Married for 20 years with two small children, I'm a college graduate and published writer. I have a good reputation in the community and have been involved in many charitable organizations.

My only crime was planting a handful of marijuana seeds.

When I was first arrested for growing pot last August, I freely admitted my guilt, fully expecting to receive the relatively minor sentence usually meted out in marijuana cases. Until recently, marijuana use and cultivation was decriminalized in many places, and even now it's only a misdemeanor in most states (including my own). It usually warrants nothing more than a suspended sentence and a small fine when prosecuted at the state level. Last year a man in Upstate New York was convicted of growing 154 plants -- many more than I am charged with -- and his only punishment was a $100 fine -- less than a dollar a plant.

My penalty probably would have been similar - if I'd been tried in state court. But more and more, these cases are being turned over to the federal government for prosecution, where penalties are much stiffer. What would've earned me, at most, a fine and probation in state court carries a mandatory minimum sentence of five years (and a maximum of 40) when prosecuted at the federal level.

It's all because of recently enacted mandatory minimum-sentencing laws. They impose statutory minimums for all drug crimes and prohibit the judge from any exercise of judicial discretion in arriving at a sentence. The judge is enjoined against taking into account things like my reputation in the community, charitable works or lack of prior record. Since there's no such thing as parole in federal prison anymore, if I'm sentenced to five years (assuming I lose my case), that's how many I'll serve.

Chalk it up to the government's "get tough on crime" policy: So what if a few undeserving people serve inflated sentences? It's worth it to keep the streets free from crime. The problem is, rather on being tough on crime, the net effect of mandatory minimums is to be soft on crime - violent crime. Since the are no mandatory minimum sentences for offenses like rape, child molestation, murder, aggravated assault, et cetera, violent criminals are often released early to make room for nonviolent first offenders like me. The average murderer now serves only six and a half years in jail (versus the five years minimum I'll serve).

But if our jail terms are similar, there's one important difference between the murderer and me: He doesn't lose his house.

Even though my house was bought with legitimate earnings, and there was no marijuana grown on my property, it was confiscated by the police shortly after I was arrested. The primary reason given was that fertilizer was found in my basement. My house was thus considered a "facilitator" of the crime, which justifies its forfeiture. When I learned that the government had seized my property on such flimsy pretenses, it infuriated me, but what bothered me even more was that they did it without even trying me first.

Since passage of the Comprehensive Crime Control Act of 1984, property can be seized if one is merely suspected of using it in a crime. It's not even necessary to be charged, much less convicted. It's up to the individual to prove that he didn't use it illegally. And since this is a civil forfeiture, and public defenders are only provided in criminal cases, he's forced to foot the bill for a lawyer. Often he also must put up a bond, sometimes as much as $10,000, which usually makes fighting the forfeiture cost-prohibitive.

In the majority of cases, the government simply steps in and takes the property without even bothering to charge anyone with a crime, and there's not a thing to be done about it. Since 1984 almost two and a half billion dollars in property has been seized this way.

There's another difference between the murderer and me. He isn't subject to penalties for tax-stamp violation. Even though marijuana is illegal, in many states you're required by law to buy tax stamps for its cultivation -- at a cost of $1,000 per plant - something that's virtually impossible to do without incriminating yourself. Yet even if you are somehow able to purchase the stamps without getting arrested but don't actually affix the stamps to the plants -- in the wind and rain -- you're still liable for a heavy fine. And they don't just count the living, growing plants. They count the dead ones and even the cutoff stems from plants that were thinned from the garden and thrown away earlier.

Even though the total weight of marijuana in my case was under five pounds, with all these other factors added in, the fine was $340,000.

When I asked my lawyer how the government expected me to pay such an astronomical fine, he said, "They don't. They want to wipe out your assets. Then when -- and if -- you get out of jail, they intend to garnish your wages for the remainder. Of course, by that time there'll be all that interest."

But the fine is just part of my penalty for tax-stamp violation. It also carries criminal (versus civil) penalties of up to five years in state prison. That's on top of the five to 40 years I'll already be serving in federal prison. All for the crime of putting a handful of marijuana seeds in the ground.

If this seems like a violation of the Eighth Amendment ("Let the punishment fit the crime"), it's not the only time the Constitution's been ignored when it comes to drug law. Confiscation of property without due process is a violation of the Fifth Amendment. Police can now obtain search warrants based on anonymous tips, which is a violation of the Fourth Amendment. And a defense attorney's legal fees can be seized in drug cases, a violation of the Sixth Amendment.

But if drug laws are chipping away at the Constitution, they're wreaking havoc on our prison system. Federal prisons are currently at 146 percent of capacity, and drug offenders serving mandatory minimum sentences make up 57 percent of the population (more than half had no prior arrests). At the current rate of incarceration, nearly 70 percent of all federal inmates will be drug offenders serving mandatory minimums by 1995.

The United States now imprisons more of its citizens per capita than any other country in the world (455 per 100,000 people). That's compared to the No. 2 country, South Africa, with 311 per 100,000. As stated earlier, violent offenders often must be granted early release to make room for this influx. In a recent four-year period in Florida more than 130,000 inmates (including muggers, armed robbers, et cetera) were released, and one out of three went on to commit new crimes. The F.B.I. reports that the rate of violent crimes in America increased by 24 percent from 1987 to 1991, and many people feel that mandatory minimums have a lot to do with it.

But apart from the hypothetical increase in violent crime due to mandatory minimums, there's the undeniable increase in taxpayer costs. The National Institute of Corrections estimates that in 1992, the United States built facilities for 2,000 cells (at a cost of $100 million) per week to accommodate the exploding prison population -- and construction costs were only a part of the total. It's been estimated that in five years, the financial obligations incurred by U.S. corrections could be double the current national deficit. On top of that, it costs on average over $20,000 a year to house, feed, clothe, and guard each of the 81,426 federal prisoners.

And this is to say nothing of the increased cost of social services of inmates' families, which were previously being provided for by the inmates themselves. Over 30 million Americans regularly smoke marijuana, so it's not surprising that a lot of people in this country feel that it should be decriminalized. I'm sure that many people would disagree, but I doubt they'd dispute the fact that the penalties for marijuana use are not only unjust and illogical, but make an unconscionable waste of taxpayer dollars. With violent crime making us all live like prisoners, it's time to stop freeing murders to make room for marijuana users.