July 30, 1999
From The Isthmus
edit@isthmus.com
http://www.thedailypage.com/
edit@isthmus.com
http://www.thedailypage.com/netforum/isthmus-forum/a.cgi

By BILL LUEDERS

THE WAR ON POT - Part One Of A Two-part Series.

Even in liberal Madison, possession of marijuana is a serious offense—and a huge drain on the resources of the criminal-justice system.

By BILL LUEDERS

Lester Pines, a Madison defense attorney, calls it "the most enormous waste of prosecutorial resources I have ever seen in my life." He referring to a case involving a UW-Madison freshman who in the fall of 1997 was smoking pot in his dorm room with friends, as have thousands of UW students through the years. A dorm official smelled that smell and called police. They searched the room and found, Pines recalls, "a little bit of marijuana, a bong, maybe a roach clip." Pines client-to-be was arrested, booked, fingerprinted and charged with two crimes: possession of marijuana and possession of drug paraphernalia.

"Here he is, in his freshman year and he’s in criminal court," says Pines, who mentions that the confiscated bong was "a lot smaller" than the six-person hookah that belonged to one of his own college roommates. Pines tried to have the charge reduced to a city ordinance violation, as he had in a previous pot-possession case. Thus his young client would have gotten a fine, rather than a criminal record.
See
How the War On Marijuana To Save The Children
Has Become A War On the Children To Save Marijuana Prohibition

But Pines says Amy Smith, the assistant DA handling the case, refused to drop criminal charges, offering only to divert the student into drug court, an intensive regime of appearances and drug tests. This was not an option for Pines’ client, who was so shaken by his experience that he had dropped out of the UW and returned to his home state, making regular appearances impossible.

In the end, the young man agreed to drug treatment and testing in his home state, even though Pines doesn’t think he had a substance-abuse problem.
See
The Real Data On Teen Marijuana "Abuse Treatment" – What The Media Don’t Tell Us:
"Half of marijuana treatment admissions were referred through the criminal justice system."
-- Analysis By Richard Cowan
Smith, for her part, blames Pines for this outcome. "Lester came up with that proposal [for treatment and testing]," she exclaims. "It was his idea. I didn’t make that kid do anything." Pines responds that, given Smith’s intransigence, this "was the only way to avoid a criminal conviction."

He says it took a number of meetings and phone calls before Smith agreed:

"It wasn’t an easy sell." According to Pines, the young man’s family ended up paying between $4,000 and $5,000 in legal fees, treatment costs and fines. "It led me to believe that there is an entire industry that exists around marijuana and its suppression," says Pines. "It’s a big industry and a big waste of money."

Worst of all, charges Pines, it’s an industry driven by people who have themselves engaged in the same behavior "There’s an entire generation of judges and prosecutors who used marijuana in college and law school," he says. "It’s hypocritical and it’s really kind of sick."

But it’s as common as pimples on teenagers. Although many Madisonians consider marijuana use to be no big deal and assume the legal system does also, hundreds of people are criminally prosecuted each year in Dane County for possession of often tiny amounts of pot. And while police have the authority to treat pot possession as an ordinance violation, which entails a $100 fine, the majority of pot-possession cases in Madison are now treated as crimes.

Indeed, the criminal prosecution of people for possessing pot has grown so common and intensive that it’s prompting a backlash from some of its prime beneficiaries—defense attorneys like Pines. "You have frequent charges of possession of marijuana and possession of drug paraphernalia," he says. "It’s an everyday occurrence. And it’s a complete waste of time, money and resources."

PIVOTAL ISSUE

Does Smith, now with the State Justice Department, consider pot prosecutions a waste? "That’s not a decision for me to be making," she says. "That’s a decision for the policy makers. Whatever the elected official tells us to do, we do."

Smith worked in the DAs office until May 1998, six months after Diane Nicks became district attorney. She says the policy in place then was a continuation of the one set by Nicks’ predecessor, Bill Foust.

That policy, explains Foust, now a Dane County judge, was that unless a pot possession case involved drunk driving or other criminal behavior, his office would "routinely offer" to plea bargain down to a disorderly conduct charge or local ordinance violation. But this is not what happened in the case involving Pines’ client, which began under Foust’s reign and ended under Nicks’. And, Foust concedes, even when charges are reduced per this policy, people are still initially charged with criminal possession. "A lot of these cases involve really small amounts—grams—of pot," says Morris Berman, a local defense attorney. "These could be charged as an ordinance violation, but they’re being charged as criminal offenses."

Being charged with a crime, either a misdemeanor or a felony, entails the risk of jail time and/or a criminal record. An ordinance violation, in contrast, is like a traffic ticket. It’s a civil, as opposed to criminal, offense.

Two decades ago, Madison was at the forefront of efforts to decriminalize pot. Madison voters overwhelmingly approved referendums to this effect in 1976 and 1977, and the Madison Common Council responded with ordinances establishing a $5 regular and $25 maximum fine for possession of up an ounce. In 1983 this fine was hiked to $50 and in 1987 to $100, where it remains. And, until 1991, marijuana brownies were sold openly at the Mifflin Street Block Party.

But those days are gone. The anti-drug saber-rattling by Presidents Reagan and Bush was followed by even greater War on Drugs spending by President Clinton. According to the National Organization for the Reform of Marijuana Laws (NORML), marijuana arrests in the U.S. have gone up every year since 1991, reaching 695,000 in 1997. Upwards of 80% of these arrests, the group says, are for possession.
See
1997 Marijuana Arrests Hit 695,000 -- A New Record; Percentage Of Marijuana Arrests For Simple Possession Ties 1979 Record -- Analysis By Richard Cowan

In Dane County, marijuana possession accounted for 873 (62%) of the 1,394 adult drug cases in 1998, as well as 307 (72%) of 427 juvenile cases, reports the state’s Office of Justice Assistance. These numbers include cases handled as ordinance violations as well as those treated as crimes.

The Madison Police Department’s policy manual once directed officers to issue citations in cases involving an ounce or less; that provision has been removed. Today, people who have past drug charges, criminal histories or who don’t cooperative with police will usually be charged with crimes.

From Jan. 1, 1998, through May 23 of this year, Madison police issued 247 citations for marijuana possession. During the same 18-month period, at least 322 cases involving pot possession were treated as crimes. (The crime figure includes only those cases in which pot possession is the only offense, or the offense that’s listed first.)

Why the tougher tact? Asst. Chief Ted Balistreri of the Madison Police Department cites several factors. First, he says, marijuana today "is much more potent than five, six, seven, eight years ago." Second, pot dealing has become more profitable, involving "high-level dealers." And third, he suspects more marijuana is being discovered via search warrants, which are on the rise.

(Marijuananews note: This is an example of how a staple of prohibitionist propaganda, which influences policy at higher levels, here influences enforcement at the street level. There is no evidence of any increase in average potency, certainly not in the last five to eight years, but if there had been, it would have occurred under marijuana prohibition as a result of the economics of contraband. Typically an adverse consequence of prohibition is used to justify more prohibition.)

See
Marijuana Prohibition And Potency, Price, And Safety -- 
"Is Marijuana Stronger Than It Was Back In the '60s, When Everyone Thought It Was Harmless?"
Analysis By Richard Cowan

District Attorney Nicks released some records with a cover letter, but refused to be interviewed for this article or to respond to written questions, saying she did not trust Isthmus to be fair. The office’s three primary drug prosecutors—Mary Ellen Karst, Ken Farmer, and Ami Larson—also declined opportunities to comment.

"Deirdre probably would have won had she coopted [Steinberg’s] stance" on pot prosecutions, says Pines. Steinberg wholeheartedly agrees: "Hell, if she had done that, she’d have gotten my endorsement." During the campaign, Nicks denied that too much time was spent prosecuting people for pot. "We make a distinction between the big dealer and the small user," she told Isthmus. "Our resources are precious, and we want to get at more serious crimes." But public records, including some made available by Nicks in response to an open-records request, tell another story.

THE NUMBERS

In 1986, 1987 and 1988, amid the anti-drug crusading of Ron and Nancy Reagan, a total of 245 adults were prosecuted for THC possession in Dane County, according to a report made available by Nicks. In contrast, an Isthmus count found that, during the three-year period that ended June 30, 1999, the Dane County DA’s office has charged more than 1,900 adults with crimes, including about 720 with felonies, for pot possession. "They’re prosecuting way too vigorously," says Charles Giesen, a local defense attorney who serves on the legal committee of NORML. "Way too many resources are spent on these cases."

At root, Giesen sees an "institutional problem" that stems from the flood of federal dollars for local drug prosecutions. "They get funding for extra staff positions," he says. "They get a substantial grant every year. It’s something of a bounty for them."

The Dane County DA’s office received $63,675 in federal Anti-Drug Abuse grant money, matched with $21,225 from the county, for the fiscal year ending June 30, 1999, according to the state Office of Justice Assistance. This money goes toward the salaries of two drug prosecutors, Karst and Larson. Federal Anti-Drug Abuse money is also currently paying the salary of a paralegal in the DA’s Office assigned to work on drug cases. The Dane County Narcotics and Gang Task Force secured this funding last fall with a memo citing "overwhelming case loads" in the DA’s office.

"For the period 6/97-11/97, case counts totaled 106 felonies and 115 misdemeanors," it stated. "For the period 12/97-5/98, case counts totaled 230 felonies and 311 misdemeanors."

The problem, says Giesen, is that federal funding is tied to caseloads, not the seriousness of the offense. A felony prosecution for pot possession counts the same as one for selling crack to school kids.

See
Drug War Priorities Shift From Hard Drugs To Marijuana, Arrest Figures Reveal
-- NORML Weekly Press Release

A FELONY CASE

How is it that people are now routinely being charged with felonies for the same offense that 20 years ago would have drawn a $5 fine?

Normally, the maximum statutory penalty for pot possession is a $1,000 fine and six months in jail. But the law provides an enhancer that doubles the penalties for people who have previous drug convictions. This makes it a felony charge.

Defense attorneys say Dane County prosecutors apply the enhancer routinely. "It appears," says Dorothea Watson of the State Public Defender’s Office, "that they charge a felony every time that they can."

Printouts provided by Nicks show that between Jan. 1, 1998, and April 2, 1999, the county’s three main drug prosecutors—Farmer, Karst and Larson—filed felony charges for second-offense THC possession about 200 times. In about 85 cases, it was the only charge. Commonly, but not always, the DA’s office agrees to dismiss the felony enhancer if the defendant pleads guilty or no contest to a lesser, misdemeanor charge. "They use it as leverage to get people to plea, to avoid a felony conviction," says Giesen. "It’s a pretty strong incentive."

In some cases, the threat of felony charges dissuades defendants from challenging the manner in which evidence was obtained. Giesen cites one "fairly typical" case in which his client denied having consented to a search of his car. If the client tried to argue that the search was illegal, "he was running the risk of being exposed to the felony enhancer." Instead, he accepted a plea bargain in which the enhancer was dismissed. A common perception among local defense attorneys is that there is little consistency in how the Dane County DA’s office handles marijuana (THC) possession cases.

They say the type of deals offered seem to depend less on the particulars of the offense than on the prosecutor—or even the prosecutor’s mood on a given day. "There’s no ostensibly coherent policy in the District Attorney’s office on these cases," asserts attorney Rick Meier, who frequency represents defendants charged with possession of pot and/or paraphernalia. "You never know what to expect. There’s just no rhyme or reason behind it."

Attorney David Mandell suspects that most decisions on pot cases are made by individual prosecutors, not Nicks. "Like her predecessor, she doesn’t micromanage attorneys in her office," he says. "She probably doesn’t have a clue what’s going on."

In response to an inquiry from Isthmus, Nicks sought information on the office’s pot possession policies. "We don’t have any actual, adopted formalized guidelines," responded assistant DA Karst in a June 25 memo. But she says Farmer "put together some proposed ones some time ago, which pretty much memorialize how we are handling these cases."

A memo to Nicks dated Nov. 5, 1998, two days after last fall’s election, outlines "proposed guidelines" that "may be helpful in reducing the number of minor THC offenses we charge criminally." These guidelines establish that anyone caught with more than seven grams (one-quarter ounce) will be charged with a crime, either a felony or a misdemeanor, depending on their criminal history. Even cases involving less than sevens grams will be charged criminally if certain factors are present: the person was charged with another crime, was uncooperative with police or qualifies as a repeat offender.

But Farmer, in a memo to Nicks dated Feb. 2 of this year, lists logistical problems with "the new charging guidelines." One is whether, in city of Madison cases, the city or the county’s ordinance should be used in lieu of criminal charges. If it’s the city’s ordinance, explained Farmer, "the case goes to Madison Municipal Court and we totally lose control over the disposition, which the police are against."

Who in the Police Department opposes routing these cases to Judge Shelley Gaylord’s Municipal Court, which would bring revenue into city coffers? Farmer and Nicks aren’t talking; Balistreri, the MPD’s assistant chief, says he knows of no such objections. Another problem identified by Farmer is that the county has no paraphernalia ordinance. He says it would be "unfair" to charge only those paraphernalia cases that occur in Madison and "absurd" not to charge at all. He suggests asking the county to pass a paraphernalia ordinance or charging these as possession cases, based on THC residue. (For this memo and more, check Document Feed at www.thedailypage.com.)

In closing, Farmer states: "An overall solution is to still charge all such cases criminally and reduce charges as per the guidelines. In this way, the technical problems evaporate in the process of plea bargaining. The disadvantage is there is no savings of resources necessary to prepare long-form complaints." In other words, let’s just keep doing business as usual, charging crimes even in cases where the goal is not to get criminal convictions, despite the burden this places on the system.

PILING ON

To some observers, the way the DA’s office handles pot prosecutions reflects a larger picture. "There’s a lot of overcharging that goes on," says Krista Ralston of the UW’s Legal Defense Program, which assigns law school students to represent people charged with misdemeanors. "And then they complain about being overworked and having too many cases."

Attorney Mandell, a representative for NORML in Wisconsin, says Dane County is somewhere in the middle in terms of how it handles pot possession cases. It’s not as "Draconian" as some other counties, but "not as liberal as it used to be." Overall, he says, "they just don’t have a sense of the lack of seriousness of the offense." Others say the problem is compounded by the tendency of the DA’s office to "pile on" charges. For instance, people caught with marijuana and a pot pipe are commonly charged with two offenses: possession of THC and possession of drug paraphernalia.

A data-base count shows that, between Jan. 1, 1998, and June 30, 1999, more than 1,100 people have been charged with possession of paraphernalia in Dane County. Usually these are brought along with other charges, but sometimes it’s the only charge (see Sidebar, "A case in point," below). Although all kinds of paraphernalia are included, attorney Mark Frank says "Most paraphernalia charges I see are for pot pipes."

Drug cases are cash cows. As part of plea agreements, defendants are commonly asked to make "contributions" to drug education programs, usually in $200 or $300 chunks. Since January 1998, the D.A.R.E. program run by the Dane County Sheriff’s Department has received $28,090 in mostly court-ordered gifts. During the same period, the city of Madison’s police-run drug educator program has gotten court-ordered payments totaling $18,491.

Fines and cost costs for these cases commonly run in the hundreds of dollars. And, of course, there are attorneys fees, which for a run-of-the-mill possession case can easily top $1,000. "Most lawyers would tell you," says Frank, "that if you repeal marijuana laws you’d take a lot of business away from us."

Further, in drug cases that lead to criminal convictions, state law mandates a six-month revocation of the person’s driver’s license. This riles attorney Giesen, because the penalty often bears no relation to the offense: "Somebody can be sitting in their living room, smoking a joint" and end up losing driving privileges.

How much trouble can a person get into for pot possession? Consider the case of D. Smith, a middle-aged Madison man with a steady job and kids in college. Frank, who represented Smith, calls him "a pretty upstanding citizen in every other way"—other, that is, than his use of pot.

On July 28, 1998, Smith was pulled over by police for a traffic violation. Officer Ann Lehner noticed a plastic baggie in the glove box when Smith reached in for his driver license. She asked if contained "weed" and Smith admitted that it did. He also volunteered that he had just cashed his paycheck and purchased an ounce from a man at Brittingham Park, giving a "pinch" of pot to another man who helped him make the connection. In all, police confiscated 30.8 grams of pot, just over an ounce. Smith was charged with possession of THC, which in his case was a felony because he had a previous drug conviction—dating way back to 1974. He was also charged with manufacture/delivery of THC—for which he faced up to three additional three years in prison (doubled by the enhancer to six years)--for the pinch of pot he gave the man who helped him score. Frank says this loose interpretation of delivery is typical: "If you pass a joint at a party, it’s delivery."

After four court appearances (one of which was delayed because "defendant recovering from heart surgery"), Smith was convicted of felony THC possession; the delivery charge was dismissed. He lost his drivers license for six months and was fined $500 plus court costs for a total of $1,026.50. A year later, he still owes hundreds of dollars on this fine, on a payment plan. (A filing from this May lists him as "unemployed.) And the $420 in cash that Smith says represented the remainder of his newly cashed paycheck? That was forfeited to the drug cops.

COLLECTIVE AMNESIA

DA Nicks, in a letter to Isthmus, remarks that "during my tenure, there has been a substantial increase in the number of referrals to our drug treatment court, most of which are marijuana cases, and a general emphasis on diverting first-time marijuana offenders."

Drug court consists of two programs, a treatment track and an education track. People charged with first-time pot possession are comminly routed to the education track. This means they must attend four two-hour classes at PICADA, and for a period of time (generally six months to a year) submit their urine for drug testing and show up regularly in Judge Stuart Schwartz’s court. Successful complete results in a dismissal of the criminal charge. Defense attorneys agree that referrals to drug court are on the rise, and many think it is a good idea. "Dane County tries to get at the root of the problem, so we don’t see these people again," says Watson of the State Public Defender’s office.

But others question whether the ordinary person busted for a first-time marijuana offense is genuinely in need of intensive intervention. In most of these cases, says Pines, "the only thing that distinguishes the people who are prosecuted from the thousands of other people doing the same thing, is bad luck."

Again, for Pines, the bottom-line issue is hypocrisy. He says members of his generation are apparently suffering from "a collective amnesia" that allow them to prosecute others for "the very same conduct that they engaged in."

Worse, he says, this generation "has allowed public policy to be determined—and an ideology of marijuana put forward—that they themselves know is not true." And so prosecutors and judges who once smoked pot without negative consequence now pat themselves on the back for their mercy when they let first-time offenders off with months of mandatory court appearances and drug testing. Smith, the former assistant DA, refused to say whether or not she personally had ever smoked marijuana: "I’m rather offended by that question." Judge Foust had this to say: "Is that a stupid question or what? I went to college here in the 1970s!"

Foust notes that the movement to decriminalize pot possession in the 1970s "was in part a reaction to sentiment about how much [of the system’s resources] should be invested" in these prosecutions. The implication is that, now that marijuana possession is once again routinely treated as a criminal offense, the public can express its discomfort and demand a different approach.

Part of what’s needed, stresses attorney Pines, is for people in the system to be honest: They smoked pot themselves, it didn’t ruin their lives, and they didn’t become criminals or addicts. He compares it to when women began coming forward to say they’d had abortions, paving the way for legalization.

"At some point," he says, "people who are in their late 40s and early 50s who used marijuana when they were in college have to stand up and say, ‘These drug enforcement policies are foolish.’"

Next week: A pot grower gets busted.

Sidebar: A case in point

How much time and effort does the criminal-justice system spend going after people who smoke pot? A case in point: The State of Wisconsin vs. Mark D. Dahl.

On August 28, 1998, UW-Madison campus cops spotted what appeared to be a pot pipe underneath a pack of cigarettes on the console area of Dahl’s parked truck. In a five-page, single-spaced report on the incident, Officer Robert Hale stated that he and his partner were "conducting plain view searches of vehicles" in the UW parking lot in the 600 block of West Johnson Street. A third officer, Stewart Ballweg, staked out the vehicle for three and a half hours until Dahl and a friend returned. Two more officers were summoned when Ballweg pulled the vehicle over on grounds that it had paraphernalia in plain view. They searched the truck and found a total of three pipes and a small amount of "what appeared to be marijuana" in the cellophane wrapper of a pack of cigarettes. It was later deemed to total 2/10 of one gram, or 1/140^th of an ounce, about $1 worth. Prosecutor Ken Farmer opted against charging Dahl, then 23, with possession of THC, which would have been a felony since he has a prior drug conviction, from January 1995. But Dahl was charged with possession of drug paraphernalia, and faces double penalties because of his prior.

Last December, Dahl’s attorney, Rick Meier, filed a motion seeking to exclude the pipes on grounds that the officers did not have probable cause to stop the vehicle. On May 26, 1999, a hearing was held before Circuit Court Judge Robert DeChambeau. Officer Hale, according to the 65-page transcript of this proceeding, testified that he observed "green vegetative material" in the bowl of the pipe. This contradicted Hale’s report, in which he stated that the substance was brown. Upon remembering that it was brown after all, he insisted it was "not similar" in appearance to tobacco.

Later in the proceeding, Officer Ballweg testified that he smelled marijuana as he approached Dahl’s vehicle after pulling it over—a fact he neglected to mention in his detailed, three-page police report. Meier questioned the "credibility" of this testimony, but Judge DeChambeau cited Ballweg’s belated olfactory recall in dismissing the motion to suppress.

Meier also called his law associate, Morris Berman, to the stand to testify that he had earlier that day bought two completely legal pipes similar to those confiscated by police from a store on State Street. These two pipes are now stuffed into the bulging case file in the office of Judge DeChambeau, who rejected this line of argument on grounds that the pipes were not like the ones his grandfather used to smoke Prince Albert. The case is set for trial on Aug. 23, almost a full year after the incident.

"It’s bullshit," fumes Meier, who vows to take the case to trial unless the charges are dismissed. "If this was Mayberry R.F.D., maybe this would be the big crime. But there’s rape, robbery, murder, domestic abuse—you name it—going on in Madison, and you’ve got University of Wisconsin police officers looking for trivial crimes in parking lots.