The Missing Question in the Great Marijuana Debate

Legal, or illegal?  That seems historically to be the central question in the debate about our nation's marijuana laws.  FAMM doesn't have a position (or an answer). While we think the question is an important one, the Great Marijuana Debate often overshadows another point:  under federal law, marijuana is illegal ... so what is a fair punishment for it, and who decides? 

Take this thought-provoking article from The Economist, for example. It asks why the federal government is prosecuting people who are growing marijuana legally, under their states' laws. To be sure, this is a vital concern for anyone who cares about maintaining the country's delicate balance of state and federal government power. But what happens to the people who are being prosecuted?

Well, they potentially face mandatory minimum prison sentences of five or 10 years or more -- sentences that are triggered (or not) depending solely on the weight or number of marijuana plants involved and the (unreviewable, non-appealable) charges the prosecutor (alone) decides to bring. If a mandatory minimum is in play, judges don't get to consider unique facts or extraordinary circumstances of the crime or the offender.

Take, for instance, Richard Lee, profiled in the article:

Oaksterdam university, a self-proclaimed “cannabis college” in Oakland, California, has been called everything from “the Princeton of Pot” to “the Harvard of Hemp”. Its founder, Richard Lee, has become the public face of the movement to legitimise marijuana. A paraplegic, he uses the drug for medical purposes, which is legal in California and 15 other states and in the District of Columbia. He also runs a dispensary for medical marijuana and sponsored a 2010 ballot measure in California to legalise marijuana completely in small amounts, whether medicinal or recreational. That measure failed narrowly, but the idea of legalisation continues to win converts.

Now, however, Mr. Lee is busted, harassed and in danger of federal prosecution. This month, armed federal agents stormed into his house and offices to confiscate plants and documents. Mr. Lee now says that, indicted or not, he plans to get out of his marijuana-related businesses.

If Mr. Lee is charged with a federal marijuana violation that carries a mandatory minimum prison sentence, the judge in his case will not be able to consider any of these facts about this man -- that he is a paraplegic, that his drug use is legal under state law, that he is an activist for a cause that the country is pretty evenly split on the merits of, that he apparently has already chosen not to continue his pot-related activities that are illegal under federal law (so much for recidivism), that (as far as we know) he has used no guns or violence and doesn't appear to be the least bit dangerous. In short, do we really want to force a judge to sentence Mr. Lee as if he is a big, bad, threatening drug dealer who we are actually afraid of?

This is the problem the Great Marijuana Debate overshadows:  judges don't get to decide the sentence.  Instead, we make them use one-size-fits-all sentences based on an ineffective 30 year-old policy  that requires costly years in prison.

The "legal or illegal" question isn't the only one we need to answer in the Great Marijuana Debate. Are mandatory minimum sentences fair, just, practical, effective? Do they keep us safe at a cost we are willing to pay? Are we willing to have them even if people who don't deserve them serve too much time in prison?

These are questions we'd like to hear more often in the Great Marijuana Debate.