Marijuana and the Law

The vigorous enforcement of marijuana laws has resulted in four million arrests since the early 1980s. Owing to mandatory-minimum sentences, many of those convicted are receiving stiff prison terms, even as violent criminals are released for lack of space. The second part of a two-part article. [See Part 1.]
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During the 1980s criminal penalties for marijuana offenses were made much tougher, at both the state and federal levels. More resources were devoted to their enforcement. And punishments more severe than those administered during the "reefer madness" of the 1930s became routine. As a result there may be more people in prison today for violating marijuana laws than at any other time in the nation's history.

Mark Young is one of those prisoners. In May of 1991 Young was arrested at his Indianapolis home for brokering the sale of 700 pounds of marijuana grown on a farm in nearby Morgan County. He had never before been charged with drug trafficking. He had no history of violent crime. His two prior felony convictions--one for attempting to fill a false prescription, the other for possession of a few Quaaludes and amphetamines--were more than a decade old. For each of these convictions he had received a suspended sentence and a one-dollar fine. Young's role in the marijuana transaction had been that of a middleman. He never handled either the marijuana or the money. He had simply introduced two partners in a marijuana farm, Claude Atkinson and Ernest Montgomery, to a couple of men from Florida who were acting on behalf of a New York buyer. Under federal law Young was charged with "conspiracy to manufacture" marijuana and was held liable for the cultivation of all 12,500 marijuana plants grown on the Morgan County farm. The U.S. attorney now had the option of filing for an "enhancement," owing to Young's prior drug felonies; this would trigger a mandatory-minimum sentence upon conviction. After being denied bail, Mark Young learned that his marijuana offense could lead to a mandatory sentence of life imprisonment without the chance of parole. His case helps shed light not only on a quiet revolution in the realm of marijuana laws but also on the often perverse consequences of mandatory-minimum sentences.

The New Rules

THERE have been mandatory-minimum sentences in the United States since the days of the first Congress, most of them adopted to punish narrowly defined crimes. A number of the old mandatory minimums are still on the books, for offenses such as "robbery by pirates" (1790) and "practice of pharmacy and sale of poisons in China" (1915). The overwhelming majority of criminal laws passed by Congress specify only a maximum sentence. It has historically been the role of a federal judge to determine whether a convicted offender deserves that maximum, a lesser sentence, or no prison sentence at all. Until seven years ago a federal judge had great leeway in choosing sentences: Congress set only the upper limits, thereby protecting citizens from excessive punishment. Parole boards served as another brake on unduly harsh sentences, deciding when prisoners merited early release.

The first broadly defined mandatory minimums were contained in the Boggs Act, which was passed at the height of the McCarthy era, amid the tensions of the Korean War and domestic fears of Communist subversion. There seemed to be an increase in narcotics use among the young, and lenient judges were thought to be partly to blame. Members of Congress vied to appear tough on drug offenders. Senator Everett Dirksen favored legislation that allowed the death penalty for selling narcotics to minors. Congressman Edwin Arthur Hall advocated giving drug dealers mandatory-minimum sentences of a hundred years. Congressman L. Gary Clemente introduced a bill recommending the death penalty for any violation of the Narcotic Drugs Import and Export Act. The commissioner of the Federal Bureau of Narcotics, Harry J. Anslinger, seemed almost moderate in calling for a mandatory minimum of five years for second offenders, which he assured Congress "would just about dry up the [drug] traffic." Congress followed his advice and then lengthened the anti-drug mandatory sentences, in 1956. One vocal critic of the new sentencing regime was James V. Bennett, the director of the U.S. Bureau of Prisons, who attributed the passage of such laws to "hysteria." Thereafter Bennett was followed by FBN agents, who submitted reports on his movements and speeches.

By the late 1960s a widespread consensus had emerged in both political parties that the anti-drug mandatory-minimum sentences were a failure. Members of Congress, federal judges, and even prosecutors found them too severe, unjust, and, worst of all, ineffective at preventing narcotics use. The spread of the 1960s drug culture had hardly been impeded by the existence of mandatory-minimum sentences. In 1970 Congress repealed almost all the mandatory penalties for drug offenders, an act celebrated by, among others, Congressman George Bush, who predicted that these "penal reforms" would "result in better justice and more appropriate sentences." A movement arose seeking a new means of determining federal sentences. Allowing too little judicial discretion had proved to be unfair, but too much could also lead to inequities: a bank robber in Florida might be given twenty years by a federal judge, whereas a bank robber in California received probation for exactly the same crime. Marvin Frankel, a federal district judge in New York, imagined a system in which a commission of legal experts would set guidelines on how to determine sentences for various crimes, taking into account details of the offender's criminal history and the nature of the offense.

After long and careful deliberation, the Sentencing Reform Act of 1984 was passed by Congress with overwhelming bipartisan support, creating the United States Sentencing Commission. It seemed a triumph of rational jurisprudence over demagoguery, an experiment in social planning that evoked shades of the Progressive Era, when panels of appointed experts were hailed as the ideal form of government. Judge William W. Wilkins Jr., a former protege of Senator Strom Thurmond and Ronald Reagan's first appointee to the federal bench, was made chairman of the new commission. In only eighteen months Wilkins and his fellow commissioners devised sentences of varying severity for about 2,000 different federal crimes. These sentencing guidelines took effect in 1987. Under the new rules each federal offense was assigned a numerical value; the judge added or subtracted points in a given case, according to various criteria; and punishment was determined by matching an offender's total points with a range of applicable sentences listed on a chart. A judge could depart from the guidelines at sentencing, but had to offer an explanation for doing so. The sentence could later be appealed by the defendant--or the prosecutor.

The same Congress that passed the Sentencing Reform Act also included in that very bill mandatory-minimum sentences for drug offenses committed near schools. Two years later the Anti-Drug Abuse Act of 1986 moved away from the deliberate calibrations of the sentencing guidelines by endorsing the blunt instrument of mandatory-minimum sentences for a wide variety of drug offenses. The University of Maryland basketball star Len Bias had just been killed by crack cocaine, and anti-drug sentiment had reached new heights; lawmakers decided once again to send a tough message. Mandatory-minimum sentences, based on the amount of drugs involved in an offense, were set at five years, ten years, and twenty years. Additional mandatory minimums were added later, including what is now known as a "three strikes, you're out" provision that specified life sentences for repeat drug offenders. During the congressional debates on these mandatory sentences there was little mention of the precedent of failure set by the Boggs Act, or of how the new laws would undermine the sentencing guidelines, or of what the wider effects might be on various aspects of the criminal-justice system, from the initial filing of charges to the ultimate rates of imprisonment. According to one survey, the most commonly cited justification for the harsh new punishments was a desire for retribution, a legal theory nicknamed "just desserts."

For most of the nation's first 200 years a convicted man or woman could ask a federal judge for mercy. On the basis of extenuating circumstances, a judge could reduce a prison sentence or waive it altogether. The new mandatory-minimum laws took that power away from the judge and handed it to the prosecutor. A U.S. attorney now has the sole authority to decide whether a mandatory minimum applies in a particular case--that is, whether to frame a charge under such a statute or not. The only way a defendant can be sure of avoiding a mandatory-minimum sentence is to plead guilty and give "substantial assistance" in the prosecution of someone else. The U.S. attorney, not the judge, decides whether the defendant's cooperation is sufficient to warrant a reduction in sentence. A defendant might cooperate and still not receive a shorter sentence, if the information supplied falls short of expectations. Long mandatory prison terms provide a strong incentive to talk. From the government's point of view, guilty pleas, accompanied by cooperation, avoid expensive trials and supply valuable evidence. From the defendant's point of view, the pressure to name others is enormous.

Some federal judges believe that the quality of much testimony in court has diminished; desperate people will say anything to save themselves. An appeal for compassion is now pointless; all that matters is the demand for cooperation. Under such a system the dilemmas often have an elemental quality. This past January in Kansas City, Tora S. Brown--a nineteen-year-old first offender with an eight-month-old daughter--cooperated with the government in a drug case involving PCP but refused to implicate her own mother. Brown was given a ten-year prison sentence without the chance of parole.

"A Sad Day For Everybody"

ASSISTANT U.S. Attorney Donna Eide, in the Southern District of Indiana, offered Mark Young a reduced sentence in return for a guilty plea and his cooperation: forty years without the chance of parole. Kevin McShane, Young's attorney, thought the offer ridiculous; he wouldn't accept forty years as a plea bargain in a first-degree-murder case. That remained the government's only offer from May to September of 1991. Meanwhile, one by one, the other defendants in the conspiracy case "flipped," agreeing to cooperate.

Claude Atkinson had been facing a mandatory life sentence, the others sentences of ten years to life. By offering cooperation each had received a "cap" on his sentence, an upper limit, of anywhere from eight to thirty-five years. But each could also conceivably walk free, without any prison time. Their sentences would depend on their performances in court, among other things. Young and Ernest Montgomery and his wife, Cindy, were the only remaining defendants who would not plead guilty.

Under the U.S. sentencing guidelines, Mark Young's marijuana offense warranted a prison term of roughly twenty-two to twenty-seven years. The guidelines would apply in his case unless the U.S. attorney decided to file an enhancement, reflecting Young's criminal history and requiring the mandatory life sentence. Donna Eide made one last offer: eighteen years, pending cooperation. Young refused it. The government filed its enhancement on the Friday before the trial was to begin. The wheels had been set in motion, and Mark Young had a long weekend in which to make his choice: agree to cooperate or risk spending the rest of his life in prison.

Kevin McShane does not believe that the government really wanted to give his client a life sentence; that sort of threat is now common in the give-and-take of the plea-bargaining process. He does not believe that the government really wanted any information from Mark Young. Claude Atkinson, who knew more than anyone else about the marijuana farm, was talking up a storm. The identities of the New York and Florida buyers would have been of interest to federal authorities in other districts, but it was not clear that Young even knew their real names. On the eve of the trial it seemed that the government simply wanted to avoid a trial. McShane strongly advised Young to accept the offer of eighteen years; with so many potentially hostile witnesses, his chances in court were uncertain--a roll of the dice. Young's family, which to this point had remained silent on the issue, also urged him to cooperate. His mother visited him in jail and begged. "At the end, when we saw how bad it was, I just really got on him," she recalls. "'Please, Mark, do it, do like the rest of them are, don't do this, don't end up, you know, with a life sentence, don't do it. Tell whatever you have to tell, like the rest of them are doing, to save yourself.' But no way would he do it. No way."

The day before Mark Young's trial began, Cindy Montgomery agreed to a plea bargain. The trial was notable for the details it revealed about the marijuana-growing operation, but the outcome never seemed in doubt. McShane thinks that Young's case was hurt by being tried alongside that of Ernest Montgomery, who had organized the operation. Jerry Montgomery testified against his brother and proved unable, owing to illiteracy, to read his own plea agreement for the jury. Cindy Montgomery testified against her husband. And Claude Atkinson spoke at length about everybody's criminal activities. The atmosphere at the trial was enlivened by jailhouse rumors that Mark Young not only had threatened the lives of Cindy Montgomery and Claude Atkinson and their families but also had slept with one of the jurors, who was going to thwart any guilty verdict. Young called no witnesses in his own defense. There was no physical evidence linking him to the crime, only testimony by Atkinson and Cindy Montgomery. The jury took just two and a quarter hours to render guilty verdicts on all counts. It had not been informed that a life sentence might apply.

Claude Atkinson was angry to receive a twenty-five-year sentence despite his cooperation. One of the prosecutors later described Atkinson as a "dreamer"; he may have expected to serve only a few years. For a sixty-two-year-old man, a twenty-five-year sentence was tantamount to life in prison. Ernest Montgomery, whose only previous conviction was for disorderly conduct, got thirty-four years without the chance of parole--also, in effect, a life sentence. His brother received eight years, his wife six, and the other defendants sentences ranging from three to ten years in prison. On February 8, 1992, Judge Sarah Evans Barker gave Mark Young a life sentence, as mandated. She also fined him $100, but did not order any of his assets forfeited; he had none, having paid his lawyer with a used car. "Mr. Young, it's a sad day for everybody in the courtroom," she said. "That concludes the matter."

A few years ago a federal judge in Utah, Thomas Green, refused to give two young drug offenders mandatory-minimum sentences of ten years each, ruling that their due-process rights had been violated by the decision to prosecute them under federal law. The same charges under state law probably would have brought prison terms of about two years. Congress, Judge Green observed, had severely curtailed the discretion of federal judges at sentencing, but had placed no similar restrictions on the behavior of law-enforcement officers and U.S. attorneys. As a result, the nation now faced "de facto sentencing by police and prosecutors." During the Bush Administration, Attorney General Richard Thornburgh did try to limit the freedom of federal prosecutors. He told them to seek the maximum penalty in every drug case, regardless of mitigating circumstances. The so-called Thornburgh Memorandum, still included in the handbooks issued to all U.S. attorneys, instructs them always to pursue conviction on the most serious "readily provable" charge. U.S. attorneys, however, are not obliged to follow that advice. In some parts of the country they have faithfully adhered to the Thornburgh Memorandum. In other parts individual exceptions have been allowed when a sentence seemed particularly cruel. In a few districts U.S. attorneys who oppose mandatory minimums have been collaborating with sympathetic judges, finding ways to help low-level drug offenders avoid long prison terms.

The Supreme Court has upheld federal mandatory minimums whenever they have been challenged on constitutional grounds, consolidating the increase in prosecutorial power. A U.S. attorney wields enormous influence in drug cases by deciding how to frame a charge, what quantity of the drug to include in the charge--and even whether to press federal charges at all. A different prosecutor might have charged Mark Young only with drug trafficking, likely bringing him a sentence of about seven years. Young's conviction for "conspiracy to manufacture" all 12,500 plants shows how broadly that crime is now being interpreted. The owners of garden-supply stores have been held legally responsible for marijuana grown by their customers--an application of conspiracy theory similar to that which once imprisoned people for selling sugar to moonshiners. Often the most important factor in determining a sentence is the amount of marijuana involved. Mandatory minimums ignore the defendant's role in the crime: a "mule" driving a truckload of marijuana can be subject to the same penalty as the person financing the shipment. In fact, defendants with the smallest role in conspiracies often serve the longest sentences, because they have so little information to trade. According to Judge Wilkins, of the U.S. Sentencing Commission, prosecutors do not pursue mandatory minimums in about two thirds of the applicable cases. Their reasoning is not made public. Unlike sentences administered by judges, those derived through plea bargains are settled behind closed doors.

Drug offenses differ from most crimes in being subject to three jurisdictions: local, state, and federal. A U.S. attorney, simply by deciding to enter a particular case, may greatly skew the range of potential punishments. A person may even be tried twice for the same drug crime: found innocent by a state jury, marijuana growers can be--and have been--subsequently convicted in federal court. There are no established criteria for when a U.S. attorney will enter a marijuana case. The federal government could prosecute any and every marijuana offender in America if it so desired, but in a typical year it charges less than two percent of those arrested. In some districts there is a policy that the U.S. attorney will enter cases involving more than a hundred plants or a hundred pounds. In others a federal prosecutor may simply take a special interest in a case. Two years ago Edward Czuprynski, a liberal activist who had long irritated public officials in Bay City, Michigan, was convicted in federal court of possession of 1.6 grams of marijuana: the amount found in a large joint. Under Michigan law he most likely would have received a $100 fine. But in federal court Czuprynski was sentenced to fourteen months in prison. His license to practice law was suspended. His successful law firm closed down. "They busted me completely," he says, "and that's what they wanted to do." After spending almost eight months in prison, Czuprynski was released by order of the Sixth Circuit Court of Appeals, a decision that the U.S. attorney is now seeking to overturn. Considering his legal fees of $40,000, his lost income of ten times that amount, and the untold thousands of dollars the federal government has already spent on his case, Czuprynski says, "That may be the most expensive joint in the nation's history."

Four years ago Julie Stewart founded Families Against Mandatory Minimums, a grassroots organization with the motto "Let the Punishment Fit the Crime." She had not given much thought to America's drug laws until her older brother was convicted for having grown 375 marijuana seedlings. His sentence was five years. FAMM now has more than 20,000 members, most of them politically active for the first time in their lives. After Mark Young was arrested, his older sister, Andrea Strong, lost three housecleaning jobs in suburban Indianapolis--a sign of the great stigma that marijuana still carries in many parts of the country. Strong is now FAMM's Midwest coordinator, a self-taught expert on federal criminal law and a tireless campaigner for the repeal of mandatory minimums. FAMM lobbies Congress for sentencing reform and compiles case histories of inmates imprisoned under mandatory-minimum laws. Among them are Michael T. Irish, a first offender sentenced to twelve years in federal prison for helping to unload hashish from a boat; Charles Dunlap, a first offender sentenced to eight years in federal prison for renting a truck used by a friend to import marijuana; and Zodenta McCarter, a sixty-six-year-old woman, a first offender, poor and illiterate, suffering from diabetes, described as "naive, trusting, and childlike in comprehension," sentenced to eight years in federal prison for conspiring to sell ditchweed (a strain of wild marijuana that is rarely psychoactive). Since being incarcerated McCarter has had a heart attack, been infected with tuberculosis, and endured three operations.

Visiting Hours

LEAVENWORTH Penitentiary is the oldest prison in the federal system. It may also be the most dangerous. One hundred years ago there were no federal prisons. The roughly 2,500 convicts with federal sentences longer than a year served their time in state facilities scattered across the country. In 1896 Congress appropriated funds for construction of the first federal penitentiary, to be located on more than 1,500 acres in rural Kansas, a few miles from the Army base at Fort Leavenworth. The new prison was built by the convicts who would soon occupy it. In the eighty-eight years since it opened, only one prisoner has ever escaped from Leavenworth and eluded recapture. The red-brick walls, with a gun tower at each corner, are thirty-five feet high and extend an equal distance beneath the ground. The main building is massive, ominous, and redolent of power. It was designed to resemble the U.S. Capitol, converting a symbol of freedom into one of punishment and obedience. On a bleak winter morning, when the grayness of the sky and that of the neighboring fields seem to merge, Leavenworth looks exactly as an inmate described it more than six decades ago: like a "giant mausoleum adrift in a great sea of nothingness."

To reach the visiting room, you must state your name and purpose to a corrections officer in a small gun tower and then climb stairs to the front entrance. After passing through two electric doors reinforced with steel bars you are photographed; stamped with invisible ink; asked to sign a pledge that you are not bearing firearms, explosives, or narcotics; led through a metal detector; and then escorted through another large door with steel bars. The visiting room looks like a Knights of Columbus meeting hall, with blond-wood paneling, a row of vending machines, and comfortable chairs separated by small tables. There is no glass between inmates and their guests. Visits are supervised by corrections officers who sit on a platform at one end of the room; surveillance cameras are hidden in the ceiling. As I waited to meet Mark Young, a small boy ran up and down the length of the room playing with his father, a bearded inmate in khaki work clothes.

Jonathan Turley, a professor at George Washington University Law School, regards Leavenworth as a perfect microcosm of the federal prison system today: antiquated, often overcrowded, and extremely dangerous both for inmates and for corrections officers. Leavenworth's rated capacity is about 1,100 prisoners, but at times in the past year it has housed more than 1,600. Overcrowding vastly increases the risk of violence; prison riots become virtually inevitable. The federal system as a whole is operating at about 40 percent above capacity. Some facilities now house two to three times the number of people they were designed to hold, even as the federal prison population increases at a rate of about 10,000 inmates a year.

Tough federal drug laws, strictly enforced, have fueled this unprecedented growth in the federal prison system. The Boggs Act of the 1950s did not have the same effect, because drug offenses were less common and less vigorously prosecuted. As late as 1967 the Federal Bureau of Narcotics had only 300 agents. Its successor, the Drug Enforcement Administration, now has 3,400. During the 1980s annual federal spending to incarcerate drug offenders rose more than 1,300 percent, from $88 million to $1.3 billion. Anti-drug mandatory-minimum sentences and the guideline sentences formulated to mesh neatly with them have transformed the inmate population. In 1970, 16.3 percent of all federal prisoners were drug offenders; today the proportion of federal prisoners who are drug offenders has reached 62 percent. Within three years it should reach 72 percent. Many are first offenders, without so much as a previous arrest, who have been imprisoned for low-level drug violations. Of the 4,244 people convicted last year of violating federal marijuana laws, 56 percent had no criminal record deemed relevant at sentencing. State correctional facilities are also being overwhelmed by drug offenders. The prison systems in forty states are now operating under court order to reduce overcrowding. Violent criminals are sometimes being released early to provide cell space for nonviolent drug offenders whose mandatory sentences do not permit parole. The number of drug offenders imprisoned in America today--about 200,000--is the same as the number of people imprisoned for all crimes in 1970. Since the latest war on drugs began, in 1982, the nation's prison population has more than doubled. The United States now has the highest rate of incarceration in the world. No society in history has ever imprisoned so many of its own citizens for purposes of crime control.

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A contributor to The Atlantic since 1994, Eric Schlosser is the author of Fast Food Nation, Reefer Madness, and Chew On This. He has also written for The New Yorker, Rolling Stone, and others.

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