The Last Man Convicted

After approval of the referendums in Colorado and Washington to legalize the recreational use of marijuana, some police stopped arresting people and some prosecutors dropped charges, even though the law has yet to go into effect.  The People have spoken, and they honored the spirit of their vote in advance of its technical application.  Some did, but not all.

From the New York Times :

In the uncertain weeks after Colorado’s vote to legalize small amounts of marijuana for recreational use, the answer in hundreds of minor drug cases depends less on the law than on location.

Hundreds of misdemeanor marijuana cases are already being dropped here and in Washington State, which approved a similar measure. Police departments have stopped charging adults 21 years and older for small-scale possession that will be legally sanctioned once the laws take effect in the coming weeks.

But prosecutors in more conservative precincts in Colorado have vowed to press ahead with existing marijuana cases and are still citing people for possession. At the same time, several towns from the Denver suburbs to the Western mountains are voting to block new, state-licensed retail marijuana shops from opening in their communities.

Some will wonder why this doesn’t offend Equal Protection, with some “perps” walking away free while others need to wonder who will put money in their commissary account.  The short answer is that the benefit conferred by the exercise of police and prosecutorial discretion is a positive, rather than the lack of it being a negative. Until it’s legal, it’s illegal, and those “conservative” (which I take to mean tough on crime antagonists as opposed to smart on crime conservatives) prosecutors who don’t think it’s a good idea will do what the law allows them to do, up to the very last second.

But a happy fellow arrested today will likely still be the subject of prosecution after the law has gone into effect.  What’s a judge to do? What’s a jury to do?  What legitimate purpose is served by applying the technical mandate of the law, that it was a crime when it happened though it’s not a crime anymore?  None of the legitimate sentencing purposes can be served, yet the law will mandate a sentence be imposed if convicted.

Someone will end up being the last person in Colorado and Washington convicted of the crime of possession of marijuana.  He may end up being a hero of sorts, the last soul sacrificed on the alter of the drug war, or at least the marijuana piece of it.  Of course, he’s not a hero, but just the last poor schmuck. 

In New York, there is a motion to dismiss in the interest of justice, a so-called Clayton Motion stemming from its derivation from a case handled by Eastern District federal district court Judge Fred Block, which has since been reduced to statute.  It provides a backdoor to toss a case where no legitimate purpose is served in pursuing it, or it’s just plain wrong. 

While the voters of Colorado and Washington have come to the conclusion that they’ve had enough of locking people away, ruining lives, squandering funds, on marijuana, voters in other states have yet to come to that epiphany. So what is soon to be lawful there remains criminal elsewhere.

This creates a problem for everyone.  It’s a lot like the tidal wave of sanity that gave rise to states finally allowing same sex marriage, even though the American imams remained adamant that it would invoke the wrath of God.  The fear of being ahead of the curve is so strong that even the New York Times couldn’t muster the fortitude to speak truth.

While the enlightened land of ice cold spring water from the mountains to be used to make tasteless beer will celebrate the lighting of hemp, juries in the Bronx, in Des Moines, in Sarasota will be instructed that if they find beyond a reasonable doubt, whatever that means, the defendant to have knowingly possessed the demon weed, they must convict.  Prosecutors will stand tall as they preach the evils of the leaf of this intoxicating plant, destroyer of families, neighborhoods, futures.  The rhetoric will be forceful as ever, and yet the guys in Seattle and Boulder will be happily toking away, muttering “don’t bogart that joint.”

How to reconcile this conflict?

Laws crafted by legislators who voted shortly after watching Reefer Madness remain on the books, mostly because legislators need to get re-elected and both enjoy the perks of tough on crime rhetoric and lack the spine to admit that they’ve been full of it all along.  Eventually, polls will push them to reverse their votes and figure out that allowing same sex marriage legalizing marijuana won’t spell defeat in the next election. They will then show that fortitude that Americans have come to expect of their elected officials, and serve as trailing indicators of the will of the People.

Until then, it’s left to prosecutors, judges and yes, even juries, in states, in cities, across America, to decide whether their duty is to honor laws borne of hysteria, fear and a war no longer being fought.  Remember, there will be eventually be a last man convicted of criminal possession of marijuana.  There will also be a last prosecutor, judge and perhaps jury who did the convicting.  Do you really want to be that last person?

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