Dear Friend of Freedom:

This past September, a pair of marijuana busts on Boston Common opened the way to mount a comprehensive challenge to the marijuana laws of Massachusetts. We at MassCann/NORML believe it's time we asked the courts to step in and stop the madness of treating responsible marijuana smokers like criminals, and we need your support to help use these cases to that end.

According to the undercover agents who arrested the two men for smoking a joint behind the NORML/High Times booth at the 18th annual Boston Freedom Rally, the pair they were taking into custody were "old enough to know better." They were also among the rally¹s scheduled speakers, having devoted much of their careers to the cause of marijuana legalization: NORML founder Keith Stroup and High Times associate publisher Rick Cusick, aged 64 and 54, respectively.

Defendants Rick Cusick and Keith Stroup with two of their lawyers, Harvard Law Professor Charles Nesson and Stephen Epstein
(l-r: Cusick, Nesson, Stroup, Epstein)

A Little History
The Boston Freedom Rally, hosted every September on Boston Common by the National Organization for the Reform of Marijuana Laws' state affiliate, MassCann/NORML, is devoted to protesting the current criminal prohibition of marijuana and calling for its legalization. A few decades back the event would have been called a "smoke-in." Booths rented by food, arts and crafts, and other vendors provide myriad treats and a festive atmosphere, while between the bands rocking onstage speakers like Stroup and Cusick call for the legalization of marijuana before a substantial crowd. It usually proves a lovely day on the Common, provided one can ignore the abundant local police.

Several smaller public events calling for the legalization of marijuana take place every year around the country, but only one draws more than the 20,000 to 50,000 who attend the Boston Freedom Rally, depending on the weather and what bands are scheduled to perform in any given year: Washington state's Seattle Hempfest, which every mid-August attracts between 80,000 and 90,000 people to both days of its pro-marijuana festival featuring five stages, scores of bands and speakers, and hundreds of vendors selling food, art, hemp clothing, and the like.

Over the years, the hosts of the Seattle event, including Washington NORML, have worked effectively with the local police and city government, and for the last several years there have been no arrests for smoking marijuana at Hempfest, despite the tens of thousands in the crowd each day smoking it openly. That's because local activists succeeded in passing a city initiative in Seattle a few years ago calling for minor marijuana offenses to be accorded the lowest possible enforcement priority, a position the police have adopted toward their city's annual Hempfest. So long as one only smokes, and does not sell marijuana, the Seattle police leave people alone.

The police in Boston, by contrast, have taken a hostile stance toward the Freedom Rally from the start, despite organizers' repeated attempts to sit down with local officials to work out a cooperative relationship. Instead, each year the police send in undercover officers and arrest 40 or 50 attendees, sometimes more, most of them teenagers. And every Freedom Rally day the historic Boston Common site itself is ringed in blue by police making their presence obvious and intimidating to all who attend. That is the net that caught Keith Stroup and Rick Cusick this past September.

Harvard Professor Charles Nesson Steps Up
Stroup and Cusick are now represented by Harvard Law School Professor Charles Nesson along with Boston attorneys Matt Feinberg and Steve Epstein, a fine legal team with whose help they are preparing to challenge the constitutionality of Massachusetts' marijuana laws, which have not been comprehensively questioned since 1979. The team is also girding to argue for the right to give juries instructions on jury nullification, a right juries exercised from the founding of our nation until the mid-1800s, when courts began to rule that attorneys could no longer remind or instruct juries that they had such a power. If its members somehow figure it out by themselves, a jury has the power to say that applying this marijuana statute to these individuals in this set of circumstances would not be justice, and can refuse to convict. But lawyers can no longer instruct juries of this important, long-established power they hold.

Stroup and Cusick intend to challenge this ruling, as well as to attempt to let the jury know that they have the power to refuse to convict, even though they will certainly find that Stroup and Cusick were in fact smoking a joint at the Boston Freedom Rally, as the defendants do not wish to deny they were doing so. After all, both have spent most of their lives arguing that there is absolutely nothing wrong with the responsible use of marijuana by adults, and intend to make that position known to the court. Stroup and Cusick believe their marijuana smoking at the Boston Freedom Rally is protected political speech, and both are more than willing to risk their personal freedom to make this stand. And now they need your help to make their best case.

What We Can Expect From This Case
At a minimum, the willingness of these defendants and their attorneys to push this issue as far as the courts will let them take it should provide the public an opportunity to reconsider whether they wish to keep treating marijuana smokers like criminals in Massachusetts. As a result, this case will likely attract significant press coverage in Boston and throughout New England. And what the public will see is two gray-haired marijuana smokers in coats and ties, represented by a trio of experienced Boston lawyers including a famous Harvard Law professor, which will signal the major media that something important is happening that deserves their attention and coverage.

After all, according to a 2003 survey by Time magazine and CNN, 47 percent of Americans have smoked marijuana at some time in their lives. That was nearly five years ago, so it is reasonable to assume that today there are more living Americans who have smoked marijuana than who have not. It looks as though our society is approaching that long-awaited tipping point beyond which public support will no longer permit such cases to be prosecuted, and when they are, juries will refuse to convict. This case's planned prominent display of marijuana smokers as mature adults rather than young kids should at the very least raise questions about the politics surrounding this issue, thereby demonstrating to elected officials that they need to reconsider marijuana's illegality more seriously. There may be good reasons to protect young kids from smoking of any kind, but does it really make sense for a state to arrest and prosecute otherwise law-abiding adults who smoke marijuana responsibly?

Even if Stroup and Cusick and their legal team fail at the trial court level with each of their intended defenses, by virtue of mounting them adult marijuana smokers will be shown in a far more positive light, and that will certainly have a positive impact on how the public perceives the issue. And that can only help in advancing the proposed marijuana decriminalization legislation currently being considered by the state legislature.

In addition, courts change public policy almost entirely at the appellate level. To effectively challenge existing precedent, a party must be willing to go through a criminal prosecution and compile a solid intellectual, factual, and evidentiary record that can be used by the appellate courts to reevaluate current law and policy. That is what the defense team intends to do here.

The strategy in Boston is to make as strong a trial record as possible, both on the constitutional challenge to the marijuana laws and for the right of attorneys to argue nullification to the jury, so that when these defendants reach the court of appeals they can make a solid argument that it is time for the courts to step in and end this madness.

Remember that it was the Massachusetts Supreme Court that recently ruled that same-sex marriages are legal in our state, the only state court to so rule to date, and it would not take a big leap for them to include the private use of marijuana by adults to be protected conduct as well.

And should this case end up with a ruling, either at the trial court level or on appeal, that the personal use of marijuana should be protected conduct, it will generate considerable national press coverage of the broader issues at hand as well as of the Massachusetts ruling itself. Similarly, should the defendants win a jury nullification argument on behalf of marijuana smokers and find themselves thus acquitted of the criminal charges, that too would make national news and would likely serve as the basis to raise similar challenges to the marijuana laws in other states.

So this is a wonderful opportunity to see if the courts in Massachusetts are now ready to step in and end the current criminalization of marijuana smokers. It is the obligation of the defendants to pursue this challenge—a fight that Stroup and Cusick did not pick, but was thrust upon them by the actions of the undercover police at the Boston Freedom Rally—as far as the courts will permit them to take it.

Your Financial Support Is Needed NOW
Please make a generous tax-deductible contribution today to help cover the costs of this litigation. It's a fight all marijuana smokers have a stake in, and one we must all get behind. Donations to the NORML Foundation are fully tax deductible. Please be sure to designate the contribution for the Boston Common Defense Fund. Thank you in advance for your attention, support, and whatever donation you can make to help fund this fight for all our freedom.

Keith Saunders, Ph.D.
President of MassCann/NORML
and Chair of the Boston Common Defense Fund