Marijuana, the Courts and Probation

One of the arguments for keeping marijuana illegal is that no one really goes to jail anymore after getting arrested—as if that makes it okay. It’s not really true (because people do go to jail), but let’s examine the claim on its own terms and look at what happens to people who are arrested and not sent to jail.

What happens to them? In some cases, they pay a fine. In most cases, though, they are placed on probation. What’s wrong with this? Plenty.

Probation is generally a wise and useful sentencing option, especially for non-violent offenders. Why, though, should it be considered an appropriate sanction for marijuana users?

It should not—marijuana use should not be illegal. That said, does probation somehow make marijuana arrests more acceptable to society? It sounds good when compared to sending someone to jail. But on closer examination, it has numerous flaws.

First, probation should be looked at for what it is, another form of correctional supervision. As such, it places an individual under the supervision of the courts. Probation also involves conditions. Sometimes the conditions are relatively minor, sometimes they are rather demanding.

Conditions of probation always include regular contact with a probation officer and, legally, a loss of an expectation of privacy, allowing the probation officer to conduct searches of the individual and their home without a warrant or probable cause.

Other conditions of probation may include restrictions on residence locations and on associations (such as with past associates in drug cases or with spouses or boyfriends/girlfriends in domestic violence cases). There may be restrictions on travel and requirements such as attending school and/or various programs involving job training, anger management and in drug cases—rehabilitation and treatment.

In many states, a majority of people enrolled in drug treatment programs for marijuana use are there because of referrals from the criminal justice system. And an additional condition of being on probation is having to pay for the drug treatment program.

Another routine condition of probation is abstinence from alcohol or drug use. Being on probation often includes submitting to regular urine testing to detect violations of this requirement.

Violation of the terms of probation, any of the terms, can and often results in incarceration.

Here it is important to distinguish marijuana possession cases from other criminal offenses in which probation is the sentence.

Marijuana legalization will, of course, eliminate criminal penalties (such as probation) for marijuana possession. But it will not eliminate marijuana use as a probation violation in other cases. Drug use, any drug use, including alcohol, can be prohibited as a condition of probation—and the issue is not that the drug is illegal, the issue is that being drug-free is a condition of probation.

Probation is just another form of correctional supervision. People in jail are not supposed to be able to drink alcohol and/or take other drugs, and the same condition applies to people on probation.

When it comes to probation for marijuana possession offenses, probation is an expensive, demanding and unjust proposition. It doesn’t make keeping marijuana illegal OK, not at all.

When it comes to the criminal justice system, placing people on probation for marijuana possession is expensive. Someone has to monitor these individuals. These people are called probation officers, and they already have a lot to do. In most urban areas and elsewhere throughout the country, these civil servants have large caseloads.

In other words, they are busy keeping up with and supervising people convicted of real crimes. Probation may be less expensive than sending a marijuana possession offender to jail, but it is still expensive and diverts criminal justice resources, in this case, those of the probation department, from better and more important uses.

When it comes to mandatory drug treatment, this also diverts resources from more important priorities.

Certainly it is expensive for the individual. But it is also costly for the drug treatment program. Sure, it is good for business; however, these professionals also have more important things to do than to treat individuals who really don’t need treatment.

In fact, federal data on drug treatment admissions reveals that many of the people admitted for marijuana-related issues on referrals from the criminal justice system don’t meet the standard diagnostic criteria for substance abuse and/or dependency.

So, what is the point of this charade?

It’s a waste of time for probation officers, drug treatment providers and the individuals subject to the conditions of a probation program. Why do supporters of prohibition cling to this practice. There is more going on here than having a stock response to deflect an argument to legalize marijuana; it’s more than being able to say, “people don’t go to jail for marijuana possession,” so we don’t need to legalize.

The point of the probation charade is to use the courts to label marijuana users as drug abusers.

This, in turn, helps support the claim that all marijuana users are drug abusers. And just as this official status of drug abuser justifies the conditions of probation and mandatory referrals to drug treatment programs, it also justifies the continued criminalization of marijuana, continued arrests of marijuana users and continued forms of societal discrimination.

Marijuana use should not be a criminal offense, and marijuana users are not criminals. More important, they are not deviants. That’s what this is all about—whether or not marijuana use is recognized as legally acceptable behavior in the United States, recognized within the bounds of normal behavior or recognized as criminally deviant.

It’s not about jail, it’s about freedom and equality.