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.]

Mark Young is big--about six foot five, with the build one would expect of an old biker. He has long hair tied in a ponytail. He seems like a hippie version of the country-and-western star Hank Williams Jr., with a gravelly drawl and a deadpan sense of humor. Before being sent to Leavenworth, Young married his longtime girlfriend, Patricia Rowland, in a Native American ceremony at the local jail. Patricia visits him as often as she can, but it is a nine- or ten-hour drive from Indianapolis to Leavenworth, Kansas. She brings him photographs of changes in their neighborhood: new houses, new stores opening at the mall. They discuss how furniture should be rearranged at their rented home; she later moves things around accordingly, and sends him pictures. She does not want him to forget that a familiar world still exists outside the brutal one he now inhabits.

Young had never been in prison before being sentenced to Leavenworth. A marijuana offense usually leads to incarceration at a minimum-security prison or prison camp. But Young's life sentence labels him as a high risk for attempted escape, requiring that he serve his sentence at a maximum-security penitentiary. Young now finds himself living among some of the most violent repeat offenders in the federal system: murderers, rapists, armed robbers, international terrorists. His two-man cell is eight feet by ten feet, with a solid-metal sliding door and no view of the outdoors, just a window facing the catwalk. A few months after his arrival Young sat in a prison auditorium, packed with inmates, watching Silence of the Lambs. A riot suddenly erupted in the darkness. Prisoners divided by race and tore furniture apart to make weapons. Corrections officers were taken hostage. Amid the chaos Young grabbed a piece of a chair and huddled against the theater wall, terrified. When officers finally quelled the riot, hours later, Young was teargassed, handcuffed, and dragged along the floor through a pool of blood. Because of Young's size, other inmates have so far left him alone. "But anything can happen here to anyone, at any time," he told me, snapping his fingers. "Just like that." Inmates with life sentences and no chance of parole have nothing to lose. Last year a good friend of Young's, Clyde Harrison, was stabbed to death in the dining room, before hundreds of other people, over a $50 debt. The killer politely handed the knife to a corrections officer, handle first. Young had never witnessed anything like it. His friend died instantly, and then "people were stepping over him to get to the salad bar."

Young's trial was such a strange experience that he finds it difficult to describe. One would have to be very stoned, he thinks, to appreciate how absurd it felt. He hardly knew Ernest Montgomery and had met Claude Atkinson only twice, spending a total of less than an hour with him. He had never visited the farm where the marijuana was grown, and to this day does not know its location. Most of the people who testified in court were people whom Young had never laid eyes on before. It makes no sense to him that the law should give him a life sentence for conspiring to cultivate marijuana. Young is quite candid about a lot of socially unacceptable things he has done, and he admits to finding a buyer for the Indiana group, but he ridicules Atkinson's efforts during the trial to depict him as a major broker, a Paine Webber of pot. The truth, according to Young, is much less dramatic. He was in Florida, fishing with a buddy and sharing a joint. His friend praised the marijuana, which Montgomery had given to Young as a free sample. A few days later the friend called Young and asked if there was any more of "that good stuff." Young thought there was. His friend then called a friend, who called another friend: a buyer in New York. Young claims that he actually received only a fraction of the $70,000 fee alleged in court. He did not really know either the buyer or the seller. Once the two got together, they did the natural thing--eliminated the middleman. "They cheated me!" Young said, laughing hard.

Although he has always loved to smoke marijuana, Young never thought much about it until coming to prison. Now he is an authority on the subject, a fan of the authors Jack Herer and Chris Conrad, who believe that growing hemp can help protect the environment. The use of its fibers for paper, Young thinks, could save millions of trees, and its distillation into alcohol-based fuels could end the world's energy shortage. Young is busy in prison designing a Harley Davidson that will run entirely on marijuana--"the Hempster." Much to his family's distress, Young was recently sent to "the Hole," Leavenworth's disciplinary building, for smoking marijuana in prison. The marijuana at Leavenworth is quite good, though expensive, he says. Most illegal drugs are easily obtained in Leavenworth, including hashish, a rarity elsewhere in the Midwest.

I asked Young the question that had been on my mind for weeks: Why didn't he cooperate with the prosecutors, when refusing to talk seemed to guarantee a life sentence? "It crossed through my mind a lot, trying to decide," he said. "But there's two ways I look at it. I feel kind of proud to have principles. And I'm glad I never lost that. But on the other hand, I can't really brag too much, because I didn't have anybody to give them. Who was I going to give them?" I suggested that they just wanted a name, some token of cooperation. The only name Young could provide was that of his fishing buddy; and in the end, he could not do it. "This guy has nothing," he said. "This guy couldn't buy half an ounce of marijuana, okay?" Young understands why the other defendants behaved as they did: "When you're talking the kind of time that they were passing out, you expect anybody to do what they can to fend for themselves." As for him, "No, I wouldn't do it any other way."

The worst thing about Leavenworth, for Young, is the noise, "the constant roar of hundreds of people talking." His cell offers no escape from it, from voices echoing off the steel and concrete, day and night. Should Young ever be released, the first thing he plans to do is go fishing--"I'm sure now that I'm locked up, the bass have come out." He feels great bitterness toward his prosecutors. "Someone who'd do what they're doing is capable of doing anything. . . . They've only proved I'm capable of smoking a joint, or of introducing a guy to another guy who needs some pounds. That's the most they've proved me capable of. What they're doing, they're destroying these families and passing out life sentences, taking people's lives, putting children on the street--I mean horrendous acts." He laughed. "I don't know of anyone that would do anything that malicious for a salary." He has no complaints about the corrections officers--men with families, working toward a pension, who daily walk unarmed amid scores of violent inmates. "I wouldn't take their job for nothing in the world," he said. "Sometimes I wonder if they realize how bad a situation they're in--you know, really." Despite it all, Young expressed a touching faith in the Constitution: "We're just going through a bad period . . . but I believe the Constitution can whip that."

When our time was up, a prison official gave Young a friendly tap on the shoulder and said, "Come on, buddy." Moments later a heavy door closed, and Mark Young was gone.

Dissension in the System

TOM Dawson has a folksy, small-town manner and a cluttered, unpretentious office, both of which disguise the fact that he is a very successful criminal attorney who has been admitted to the bar in every federal circuit. Dawson grew up in the town of Leavenworth, and is arguing Young's appeal. The issue before the court concerns how much marijuana Young could reasonably have foreseen would be produced by the conspiracy. Dawson and Assistant U.S. Attorney Donna Eide have been sparring over plants and pounds and the proper equation for turning one into the other; at times even the judges on the court of appeals get confused. The dispute might seem worthy of an Abbott and Costello routine if its outcome were not going to determine a man's fate. The gray-haired Dawson is a lifelong Republican who earns a living representing drug offenders, among others. But he has become profoundly disillusioned with the war on drugs. "It is corrupting everything it touches," he told me. At sentencing the degree of a defendant's guilt often seems less important than his willingness to hand over assets and name others. "I've had kingpins walk free," Dawson admitted. In a case handled by another lawyer, a major cocaine dealer with a fleet of Learjets testified against "everybody he ever met," Dawson said, and served less than four years in prison, despite being caught with 20,000 kilos of cocaine. "It's just the guy who doesn't cooperate who then gets everybody else's time. It's just the way it works. And they finally will run into some poor guy who says, just like Mark, 'I'm not going to do it. I've got principles.' Well, then, fine. You take all their time. And that's really about the way it works." Guilty pleas are what keep a legal system that is overwhelmed with drug cases functioning. In certain situations, Dawson believes, an innocent person is better off pleading guilty: "If you don't plead and you bet wrong, the sentences are just too high to serve."

Anti-drug mandatory-minimum sentences have created dissension in the federal legal system, prompting many judges to seek early retirement. Judge William Schwarzer, the head of the Federal Judicial Center, believes that the nation risks losing some of its best judges. In his view, a lack of respect for the profession, a sentencing process that often reduces judges to the status of adding machines, a staggering backlog of drug cases, and a widespread sentiment that judges are not to be trusted in choosing sentences may all combine to persuade highly qualified people to avoid the bench. Judges were meant to be impartial arbiters; too often now they are merely bystanders, as U.S. attorneys administer punishments chosen by Congress. Perhaps a hundred senior federal judges are currently refusing to hear low-level drug cases prosecuted under mandatory-minimum laws. One of them, Jack B. Weinstein, of New York's Eastern District, announced his decision with regret, aware that he might be passing the "dirty work" to his colleagues. "I need a rest from the oppressive sense of futility that these drug cases leave," he wrote in his announcement. "I simply cannot sentence another impoverished person whose destruction has no discernible effect on the drug trade." Weinstein believes that imprisonment can serve as a deterrent; in court I watched him rebuke corrupt taxi inspectors and insist that their plea bargains include prison terms. It is a question of proportion. In refusing to apply a ten-year mandatory minimum to a poor woman caught smuggling heroin, Weinstein quoted the utilitarian philosopher Jeremy Bentham. "Every particle of real punishment that is produced, more than what is necessary," Bentham wrote, "is just so much misery run to waste."

Deborah Daniels was the U.S. attorney in the Southern District of Indiana from 1988 to 1993. She not only supervised Mark Young's prosecution but also helped set the Justice Department's sentencing policy during the Bush Administration. "My position as a prosecutor," she says, "was not to make the laws." Congress had passed legislation to remove judicial discretion through mandatory minimums and guidelines. The Justice Department decided that it would be wrong for prosecutors "to take over that role as judges." The laws were to be fully enforced as written. Daniels acknowledges that in some districts assistant U.S. attorneys would "work a case backward," deciding what punishment a defendant ought to receive and then finding a way to charge for it. "I don't agree with that. That's cheating. And we didn't cheat in the Southern District of Indiana. We played it straight. And that's how Mark Young got his sentence." She denies that the threat of long sentences was used mainly to induce plea bargains: "We didn't do things like that." The policy of her office was to seek conviction on the most serious readily provable charge--in every case, without exception. "The minute you start saying, Well, gee, that's kind of severe for this guy and what he did," she argues, "then you're deciding what the case is worth." Daniels believes that Young's sentence is what Congress mandated for that offense. Many people think it is wrong to give a life sentence when "only marijuana" is involved. Daniels disagrees. The United States cannot discourage other countries from exporting cocaine if it is unwilling to fight an illegal drug produced domestically. "Yes, prisons are expensive," she admits, "but if we are going to crack down on a serious problem . . . we are going to have to bear the brunt of that." She does not think the pressure to cooperate has diminished the quality of testimony in court. And what most people don't realize about U.S. attorneys, she says, is that they spend a good deal of their time getting innocent people out of trouble, by declining to file charges. In Mark Young's case, all things considered, the system worked exactly as intended.

Last year Attorney General Janet Reno amended the Thornburgh Memorandum, allowing U.S. attorneys to take into account the circumstances in a particular case--a tacit acknowledgment of prosecutorial power. Seeking the maximum sentence is still the policy of the Justice Department, but exceptions can be made. Judith Stewart, the new U.S. attorney in Indiana's Southern District, has vowed to seek "consistency without mathematical regimentation." The Clinton Administration, however, does not plan any changes in how the war on drugs is being waged against marijuana. Lee P. Brown, the head of the White House Office of National Drug Control Policy, recently summarized the Administration's view this way: "Marijuana, as you know, is a controlled substance. Our position is that it should remain a controlled substance. We feel that way because it is a potentially dangerous psychoactive drug, with strong links to medical problems and negative, or at least high-risk, behavior among its users." Enforcement policies adopted by the two previous Administrations will continue. The crime bills recently passed by both houses of Congress include weak "safety-valve" provisions that will allow judges to waive mandatory-minimum sentences for some low-level first-time drug offenders, who in return must offer full cooperation. The crime bills also specify the death penalty for any marijuana offender caught with 60,000 plants or more.

One of the great ironies of American drug policy is that anti-drug laws over the past century have tended to become most punitive long after the use of a drug has peaked. David Musto, a professor at Yale Medical School and the pre-eminent historian of American narcotics policy, explains that when drug use is at its height, so is tolerance; but as drugs recede from middle-class homes, their users are marginalized, scapegoated, and more readily punished. The price that society pays for harsh sanctions becomes invisible to most people. Musto thinks that our nation's drug laws reflect cultural changes after the fact; though extreme punishments may help to limit a drug epidemic, the principal causes of its rise and fall lie elsewhere. This theory is supported by recent history. Marijuana use among the young peaked in 1979; strict federal laws were passed seven years later, when use had already fallen by 43 percent; and the explanation most young people gave for quitting marijuana was a concern about the perceived health risks, not fear of imprisonment. A drug culture is once again emerging on college campuses, despite the existence of draconian mandatory minimums. Twelve years after the current war on drugs was declared, some rough numbers may hint at its cost: $30 billion spent so far at the state, federal, and local levels to fight marijuana; two billion dollars' worth of assets seized in marijuana cases; four million Americans arrested for marijuana offenses; a quarter of a million people convicted of marijuana felonies and sent to prison for at least a year. Statistics can only suggest a portion of the truth. As I learned from the families of inmates, the human costs are not so easily measured.

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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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