In many states the following scenario is a felony, punishable years in prison.
Chris (not his real name) like to smoke pot, so he grows a few plants downstairs in the basement. He lives in a state with modest penalties for possession of small amounts of marijuana presumed to be for personal use. Chris has seven or eight plants, grown from seed, and each one is about a foot tall. Somehow the police learn about this activity and get a search warrant. Chris is arrested and charged with the manufacture of marijuana with intent to distribute.
The prosecutor believes that Chris really is growing marijuana in order to sell it. The prosecution’s case is built on a dual foundation and supported by expert witnesses provided by the law enforcement community.
First, marijuana plants—any marijuana plant—produce lots and lots of marijuana, typically a pound of marijuana per plant. Second, marijuana users only consume small, very small, amounts of marijuana. So these plants, in this case, will produce over seven pounds of marijuana and that is far more than someone would consume in the course of a year. Therefore, the prosecutor argues, it is clear that Chris is growing marijuana with the intent to distribute it.
This happens to personal-use cultivators all over the country, and experience as an expert defense witness over the years shows that it is possible to successfully respond to these types of charges. Good lawyers know how to challenge these types of cases, but not every defendant has access to a good lawyer or a capable expert witness.
As most people familiar with marijuana cultivation know, in most conditions, marijuana plants do not provide yields of a pound per plant. A lot depends on the space available to a plant and the conditions in which it is grown—as well on the genetic stock of the seeds or cuttings.
Furthermore, while usage patterns for marijuana vary, research documents annual usage by many consumers in the neighborhood of several pounds per year.
There are additional issues when it comes to mounting a defense to unfounded felony cultivation charges, when it comes to the issue of personal cultivation. But the felony equation goes to the heart of the problem with marijuana laws, and it’s more than police officers making self-serving observations and offering them up to the public as expert opinion.
The real problem here is the Faustian bargain created by marijuana decriminalization laws. In the story of Faust, he makes a deal with the devil, selling his soul in exchange for power and knowledge. So in a Faustian bargain, someone sacrifices values for material gain.
Marijuana decriminalization reduces the legal penalties for people arrested for marijuana possession, and that’s a good thing.
But it comes with a cost, hence the allusion to a Faustian bargain. What’s lost, or sacrificed, is a true accounting for the injustice of marijuana prohibition.
Marijuana decriminalization makes prohibition affordable for the police and local criminal justice systems. Indeed, when you think about the costs and benefits from the law enforcement perspective, they don’t have to pay the costs of jailing people, and instead, they reap the benefits of people paying fines.
The other problem with decriminalization is that it creates the damaging myth that people only use very small amounts of marijuana for personal use.
Think about it, decriminalization affects what is referred to as small personal-use quantities of marijuana. Usually this is defined as an ounce. (Although credit goes to Ohio, where decriminalization of marijuana possession covers up to 100 grams, or a little over 3 ounces.)
This narrow definition of a personal-use quantity of marijuana is one of many ways marijuana prohibition helps to support the black market—it makes it sensible for marijuana consumers to buy small amounts of marijuana and pay more for them rather than risk harsher penalties for possessing amounts greater than what decriminalization allows.
However, this also reinforces the position taken by police that anyone who has more than an ounce of marijuana must be a drug dealer, especially if they have several ounces or worse, several marijuana plants. That’s the felony equation—if you have more than a little bit of pot, you’re not a marijuana user, you’re a marijuana dealer.
And that means years in prison, or, for in many cases, a felony conviction and a long time under correctional supervision in the form of probation or parole.
People are allowed to buy gallons of scotch and vodka. People are allowed to buy cases of wine. People are allowed to buy kegs of beer. There are several reasons for this, but the reasons don’t really matter—it’s called freedom.
Practical considerations make accepting restrictions on the amount of marijuana people can cultivate or possess good politics. It takes such restrictions in order to advance the cause of reform. Frankly, marijuana would not be legalized in Washington, Colorado, Oregon, Alaska or Washington, D.C. without such restrictions, and without them, legalization measures would fail in upcoming referenda in other jurisdictions.
Nonetheless, it’s time to give the general public a more realistic perspective on what constitutes personal marijuana use and cultivation. Lawyers and expert witnesses have been successful at this in court for years, but it is time to extend the defense of personal-use cultivation in the court of public opinion—both to reduce the number of people facing unwarranted criminal charges and to advance realistic and fair regulations for legal marijuana cultivation and use.
