Jon Gettman is a long time contributor to HIGH TIMES. A former National Director of NORML, Jon has a Ph.D. in public policy and regional economic development and consults with attorneys, advocates, and non-profits on cannabis related research and public policy issues. On October 8, 2002, along with a coalition of organizations, he filed a new petition to have cannabis rescheduled under federal law. This column will track that petition's progress.

Feb. 11, 2005
Reform on Trial

Why has this column become so critical of the reform movement recently? Here's the answer: after extensive research on marijuana arrests in the United States it's hard to make a case that the marijuana users are any better off now than they were 15 years ago. Indeed marijuana arrests have doubled since the 1990s.

The data, the numbers, the statistics, the analysis are all very persuasive on this subject, but even they fail to capture the true human dimension of an individual arrest for personal marijuana use.

Many reform activists and movement leaders have experienced first hand the awesome power of a criminal prosecution. Nonetheless consulting and testifying as an expert witness in marijuana cases provides a different perspective on reform issues.

In most states an individual arrested with more than a small quantity of marijuana is charged with possession with intent to distribute. Consequently anyone growing marijuana for personal use or who buys marijuana in bulk faces felony drug trafficking charges. The facts of individual cases vary immensely, but they have several dimensions in common. There is usually controversy over the initial search and seizure, the potential yield of the plants, and the nature of the physical evidence seized. In many cases judges or juries only receive a one-sided interpretation of the evidence from the prosecution as the defense is unable to afford expert witnesses or sufficient research to support a successful defense.

Many such prosecutions can not succeed in the face of expert testimony on behalf of the defense. There is often evidence in the record in these sorts of cases to support a defendant's claims of personal use and intent. However the possible outcomes of a marijuana criminal case are irrelevant to the need and urgency for marijuana law reform. At issue is the risk faced by an individual marijuana user and the maximum penalties they face under current laws.

I have spent a lot of time with individuals facing these risks through my work as a defense consultant and witness. It's a wonderful feeling to contribute to a successful defense and an agonizing one to witness a conviction despite one's best efforts. The overall experience personalizes what are otherwise abstract issues. Because of my experiences in court the statistics of marijuana arrests are not just a bunch of numbers, they represent individual people all in similar circumstances to the clients I am familiar with.

Reform is on trial, and the public is not the only jury the reform movement must concern itself with. Reform is on trial every day with the individuals facing trial on marijuana charges and those facing the greatest threats of arrest, sanction, and/or incarceration.

There is a school of thought in the reform movement that a lot can be gained by losing state-level ballot initiatives or over-reaching legislative programs because the overall debate keeps the reform issue before the public. There is a debate among activist and financial supporters of marijuana reform every year about which local efforts to support. Frequently this debate focuses on finding opportunities to gain national attention for the reform cause rather than on finding opportunities to fight the worst penalties or otherwise make constructive forms in the states with the highest arrest rates. These approaches, well meant as they are, do not resonate well with the primary clients of reform.

State level reform is important and essential. However incremental reform in one state is just that. It doesn't really do much to change problems for marijuana users that exist in other states. Minor changes in the medical marijuana laws of small states, for example, don't do much for people facing severe penalties for simple possession in other states. Long-term strategies that are projected to play out over the next twenty years don't respond to the needs and interests of the 15 to 24 year old age group that faces the greatest threat of arrest over the next several years.

The marijuana movement is better off now than it was 15 years ago, but the same can not be said for marijuana consumers when it comes to the threat and risk of arrest for personal marijuana use.

The movement is filled with extremely capable individual and organizations. Capability, though, is not the same as competence. An organization is competent when it demonstrates coherence and effectiveness. Coherence, in public administration, is defined by a clearly established mission and one in which all organizational components have concise roles. Effectiveness is utilizing organizational components to achieve a series of objectives over time, actually getting somewhere and producing results. When it comes to the issue of national reform of our marijuana laws the coherence and effectiveness of national strategies is a vital subject for discussion. In many respects competency, for organizations, has a lot to do with the process of becoming an institution, in that the quest for competency usually results in the organizational changes that produce institutions.

Criticism and evaluation are essential to excellence. Accountability is a crucial element of success. The dedication of the reform movement to the interests of marijuana consumers must be matched by a dedication to excellence and effectiveness. Reform is on trial with those most affected by the marijuana laws, and reform advocates and organizations must not lose touch with the priorities of their core constituencies. Looking for easy victories on small states is merely working in the margins of a vital and urgent issue. As long as the movement has marginal objectives the movement will only produce marginal results.

Crimes of Indiscretion: Marijuana Arrests in the United States, my review of marijuana arrest data, will soon be published and widely available to the public. Working on this report has made me more critical of the marijuana reform movement because it has made me more aware of the extensive human impact of marijuana laws and the urgent need for reform, now, in the short-term, not at some abstract point in the future.

Correction: The previous column incorrectly reported that the current ballot initiative in Nevada was required under state law to be passed in two state elections. The Marijuana Policy Project (MPP) has won a court challenge and this measure will be on the Nevada ballot in 2006 unless enacted sooner by the Nevada legislature. If passed, the measure will not require a second election and would then be subject to review in federal court. Despite the criticisms detailed in the previous column MPP's Nevada initiative is a daring and innovative challenge to federal marijuana prohibition that will incite national debate and discussion of marijuana law reform.