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January 6, 2008 - Rutland Herald (VT)

Mini-Saga Begs the Question:

Why Is Pot Cultivation For Personal Use Illegal?

By Daniel Sedon

Return to Drug War News: Don't Miss Archive

Now that the governor and Windsor County State's Attorney Robert Sand have essentially agreed to disagree about marijuana prosecutions in Windsor County, perhaps the time is right to toss out a much more fundamental question: Why is marijuana cultivation for personal use illegal at all? Specifically, why can't responsible, tax-paying, adult citizens of this state grow marijuana for their own use on their own property if they wish to? I realize this will strike some as a naive question and leave others spluttering mad, but in the end there really is no good, much less constitutional, reason for this conduct being prohibited.

It's helpful to first review a recent controversy: Martha Davis, a 61-year-old attorney and part-time judge from Windsor, was found in possession of growing implements and a sizeable quantity of marijuana. Her case was sent to Court Diversion, a community-based program that allows people who have never been in trouble before to avoid a criminal conviction by taking responsibility for their offense and making reparations to the victim and the community.

The governor got wind of this and essentially flipped out, saying it was a travesty of justice. He went so far as to order law enforcement to bypass the state's attorney's office and send "significant" marijuana cases directly to the attorney general or the federal prosecutor in Burlington.

Soon, it was reported that a Republican prosecutor from a neighboring county had done pretty much the same thing the week before in another case involving a homeowner growing marijuana for his personal use. The controversy then quickly died out and the governor grudgingly made nice with Sand.

This mini-saga, aside from its limited entertainment value, highlighted a recurring dilemma for prosecutors created by antiquated marijuana laws: What to do with good citizens charged with a serious, yet victimless crime?

After living her life right for 61 years, being a good neighbor and good attorney, should Davis have been incarcerated, or convicted of a felony because, apparently, she finds it beneficial in some way to use marijuana?

Any thoughtful prosecutor has had to confront this issue many times and in my experience many of them are frustrated by the limited choices they have. The law is on the books, so they can't just ignore it. On the other hand, not many relish the prospect of destroying a good person's life for engaging in civil disobedience of a law that treats adult citizens like children.

So if you pay attention to these things you see a lot of these cases going to diversion or deferred sentences, or disposed of with a fine. It's hardly a solution though, because it doesn't address the fundamental problem, which is the law itself. It's not that Davis was a bad person: She is a good person who harmed no one, yet had her life fouled up by a bad and stupid law from a bygone era.

Remember, marijuana possession and cultivation laws originated somewhere in the mists of time at the beginning of the last century, back before women could vote, a time of Sunday "blue laws," when segregation was legal and abortion was a felony. (I could go on and actually, I will: being gay was against the law, while beating your wife and children was not; if you were considered "mentally incompetent" the government could sterilize you; blasphemy and adultery could land you in jail. Sexual harassment? Please!) It was a time when a small handful of white men wrote, enforced and decided the law. In the intervening century or so a lot has changed, thankfully, and notions of privacy and government paternalism have changed too. But somehow the prohibition against citizens growing or using marijuana has survived.

But why? What harm is prevented, and what societal good is obtained by this law? Defenders of the status quo trot out the same tired old rhetoric, starting always with some variation of the argument that it would harm children or send the wrong message to children. Well, children should not drink alcohol, smoke cigarettes or use marijuana.

Further, the black market economy created by prohibition probably provides children more access to the drug since it is completely unregulated. The "child card" is ultimately a disingenuous argument in any event, because the debate doesn't concern children; it concerns adults being treated like children. I have never heard a cogent explanation from any political leader as to why adults cannot make this choice for themselves. If you think about it, neither have you. The reason is there really is no good justification for this law.

If the reasons for prohibition are somewhat vague, the harm caused by the law is quite clear. Thousands of otherwise productive and law-abiding Vermonters are put at legal risk every day. Doctors, cops, teachers, professors and judges are among the professionals who risk their very careers for conduct that is private and does not breach the public peace. Millions are spent every year snooping on people's property and invading their homes (traumatizing any children present in the process) while other legitimate law-enforcement priorities remain under-funded. The black market economy funnels untold riches directly to organized crime. All of this money, all of this effort and all of this human misery has accomplished exactly nothing.

Roughly the same number of citizens use marijuana today as used it last year as used it 10 years ago. When this many citizens are willing to risk so much to engage in this behavior, it's not a matter of them being on the wrong side of the law, but the law being on the wrong side of the people, and maybe it's time for the law to change.

Now, it is almost obligatory that anyone criticizing any drug law add that they are not promoting the use of drugs, lest they lose all credibility. I am not promoting marijuana use here, but not for that reason. Halfway through my second decade as a criminal defense attorney, I can honestly say that marijuana is not a harmless drug. In fact it is more powerful and potentially dangerous than many users would care to know or admit. Still, the greatest harm to people I have personally witnessed has been a result of the fact that it is illegal. Tobacco is lethal, alcohol is wildly destructive to the fabric of society in myriad ways, and marijuana can potentially screw your head up. Used responsibly and in moderation, maybe not, I don't know. What I do know is that an awful lot of Vermonters choose to use it and in my experience some of the most industrious, creative and financially successful people I have ever met are included in that group. As adults, they ca! n make a choice about this as it affects only them. That's what free, grownup people do. At this point in our history, it is simply laughable that the government would presume otherwise.

Let me finish with some language from the Vermont Constitution (a wonderful document that is actually fun to read and available at your local library or online). Chapter I, Article 1, says "That all persons are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are the enjoying and defending of life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety " (This section goes on to outlaw slavery -- boy, I love this state!) Enjoying life and obtaining happiness in the manner that best suits each citizen. This is why we organized as a state, and it should be the purpose of our laws to maximize people's freedom to do just that.

Why is cultivation of marijuana on one's own land for personal consumption illegal? There is no good answer, or no answer that avoids arbitrary and capricious distinctions, paternalistic, dated attitudes -- there's no answer that really makes sense. In my opinion it's just force of habit -- it's a bad and stupid law that has hung on a long time. History shows that bad and stupid laws don't last forever, eventually people come to their senses and demand a change. Surely someday these cultivation laws will go away.

The only question is how many good and productive citizens will be hurt by them before they do.

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