In 1994, Eric Schlosser was eating breakfast at home when he received a phone call from the editor in chief of The Atlantic, Bill Whitworth.
“Eric,” Schlosser recalls Whitworth asking, “is there anyone in prison right now for marijuana?”
The call came as a surprise. It had been only a few months since the publication of Schlosser’s first Atlantic article—picked up from the slush pile—on the New York Police Department’s bomb squad.
Whitworth told me that the idea had originated after he saw “a little piece in the Times” about a marijuana arrest in the Midwest. “I had just assumed that marijuana had been de facto legalized,” he wrote in an email recently, “unless you were talking about giant shipments from Mexico, or something like that.”
In fact, nearly 500,000 drug arrests involved marijuana in 1994—and that number would only grow in the coming years.
The “very modest piece” Whitworth expected from Schlosser—“because I thought it was a small story and Eric was a beginner,” he said—snowballed quickly. A two-part series, which comprised “Reefer Madness” and “Marijuana and the Law,” was published in the August and September 1994 issues. Schlosser’s investigative reporting won a National Magazine Award; he later used it for his 2003 book on the underground economy, also called Reefer Madness.
The Atlantic series explored the impact of the War on Drugs—specifically marijuana convictions—on America’s criminal-justice system. “Reefer Madness” homed in on the severity of marijuana laws and their enforcement in the United States, while “Marijuana and the Law” delved into the contemporary landscape of federal mandatory minimum sentencing. These two prongs, Schlosser argued, had coalesced to put “more people in prison today for violating marijuana laws than at any other time in the nation’s history.”
When Schlosser was reporting, he came across Mark Young’s story through the nonprofit organization Families Against Mandatory Minimums. At 38, Young was arrested in Indianapolis for brokering the sale of 700 pounds of marijuana grown on a nearby farm. At no point did Young handle the drug; he served as the middleman between two people wanting to sell it and three people wanting to buy it. He had never been charged with drug trafficking, nor did he have any history of violent crimes. However, the simple association with marijuana led to his conviction and to life imprisonment without the possibility of parole. It was, Schlosser told me, a “completely Kafkaesque and absurd situation.” (Young’s sentence was eventually reduced.)
“Underlying Young’s tale is a simple question,” Schlosser wrote. “How does a society come to punish a person more harshly for selling marijuana than for killing someone with a gun?” While Young’s sentence was unusual, it was by no means unique, Schlosser showed:
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.
Marijuana laws in the United States date back to 1619. Criminalization, however, began in the early 1900s, after a wave of Mexican immigrants fled to southwestern states following the Mexican Revolution. “The prejudices and fears that greeted these peasant immigrants,” Schlosser wrote in “Reefer Madness,” “also extended to their traditional means of intoxication: smoking marijuana.” Police officers in Texas claimed that the drug would stir up violent crime, and rumors escalated that Mexicans were distributing it to schoolchildren. One of the first U.S. ordinances banning the sale and possession of marijuana passed in 1914 in El Paso, Texas. Twenty-three years later, Congress passed the Marijuana Tax Act, which effectively criminalized possession of the drug across the country.
Over the next few decades, as levels of cultural acceptance fluctuated, lawmakers ping-ponged between flexible and harsh penalties for the sale and possession of marijuana. “When drug use is at its height, so is tolerance,” Schlosser wrote in “Marijuana and the Law,” “but as drugs recede from middle-class homes, their users are marginalized, scapegoated, and more readily punished.” In 1972, the Shafer Commission—a bipartisan group appointed by President Richard Nixon to study the drug —advocated for the decriminalization of marijuana. Nixon rejected the recommendation. Nevertheless, 11 states decriminalized the drug in the 1970s and a number of others weakened their laws. Then Ronald Reagan won the presidency.
In office, Reagan signed into law the Sentencing Reform Act of 1984, which created new sentences for about 2,000 different federal crimes—including drug offenses—and created the United States Sentencing Commission. Two years later, the Anti–Drug Abuse Act introduced mandatory minimum sentences for federal drug offenses; the shortest sentence amounted to five years. The document was written in a few weeks and, unlike most bills, passed without a public hearing—and therefore without the input of federal judges, prison authorities, or drug-abuse experts. Punishment for federally prosecuted drug offenses now hinged not on an individual’s participation in a crime, but on the quantity of drugs involved. The new rules stripped power away from judges and increased the influence of prosecutors. U.S. attorneys, Schlosser wrote, could now decide “how to frame a charge, what quantity of the drug to include in the charge—and even whether to press federal charges at all.”
As a result, by the time Schlosser wrote his Atlantic series in the mid-1990s, prisons were brimming with nonviolent marijuana drug offenders: One out of every six inmates in the federal prison system was incarcerated for a marijuana offense, and 20,000 to 30,000 people were being held in state prisons and local jails for such offenses; some served life sentences.
“Statistics can only suggest a portion of the truth,” Schlosser concluded in “Marijuana and the Law.” “As I learned from the families of inmates, the human costs are not so easily measured.”
Atlantic readers had a wide array of responses to Schlosser’s series.
“I have no quarrel with Eric Schlosser’s point that the punishments for the sale and possession of marijuana are excessive,” Nancy B. Burrell of Sarasota, Florida, wrote. “But I do object to his exclusion of the drug’s truly negative qualities.” Marijuana, she continued, has an “insidious influence” that in some cases can lead to “full-blown psychosis—an awful and usually misdiagnosed condition that can occur even in seasoned users, or can occur after the first use.”
Nancy Starr of Erie, Pennsylvania, was particularly worried about the impact of marijuana on daily activities such as driving and operating heavy equipment, and about young people’s drug use. “Adolescents tend to give little consideration to either their future health or present risks,” she wrote. “But they do understand discipline. We need to identify more users of every age and to impose short-term punishments, including arrest, jail terms, and significant fines.” She saw strict laws as having a domino effect: Harsh punishments would “deter users” and “reduce the number of dealers,” which in turn would reduce “the number of people serving long prison sentences.”
“The only way that potential criminals are going to learn to be law-abiding citizens is by example,” Robert Nance of Indianapolis, Indiana, wrote. He argued that society is “far too soft on people who screw up,” and suggested that “the message will eventually sink in” if the public sees drug affiliates receiving lengthy prison sentences.
“Mr. Nance is entitled to his opinion on the deterrent effect of long sentences and of the death penalty,” Schlosser replied. But he reiterated the difference between state and federal mandatory minimums to highlight the arbitrary nature of the policies. “Had Young been convicted under Indiana state law, the maximum sentence for his crime would have been twenty-eight years—at most fourteen years served, and probably much less.”
David Schlesinger of Chandler, Arizona, questioned the accuracy of some of Schlosser’s data, and wrote that drug-related crimes “are among the most pernicious and vicious, with innocent children [often in the] crossfire of drug dealers fighting for schoolyard ‘turf’”:
Ask the parents of the three young children murdered by warring drug dealers in Chicago last summer how they feel about men selling a few pounds of dope. Mark Young was aware of the risk he took when he sold a few pounds. Why should he not be held responsible for his actions?
In his reply to Schlesinger, Schlosser noted that “marijuana offenders are not often found exchanging gunfire”:
In 1992, of the marijuana felons sent to federal prison 58 percent had no relevant criminal history at the time of sentencing; 91 percent were not considered organizers, leaders, managers, or supervisors of any drug organizations; and 92 percent did not own a firearm at the time of their arrest.
A few readers agreed with Schlosser’s conclusions.
Mark A. Kaplan of Burlington, Vermont, felt that the most frightening aspect of mandatory minimum sentencing was the “awesome power now vested in the U.S. attorneys who consider the exercise of compassion a sign of weakness.”
According to Peter Wilson of Phoenix, Arizona, the “laws are morally bankrupt.” The question is, he continued, “What happens to a society that equates robbery, rape, and murder, with selling someone a safe, nontoxic vegetable?”
Wes Howard-Brook of Seattle, Washington, wrote that the article exposed something about the “hopelessly dysfunctional nature” of the criminal-justice system as a whole. “‘Justice’—whether in its philosophical or in its theological sense,” he wrote, “has virtually nothing to do with the criminal process in our country. Rather, the system rewards winning, pure and simple.”
Finally, Jim Hunter of Philadelphia, Pennsylvania, addressed how uniquely American these circumstances were. He pointed to an article from The Economist that reported that despite “hardline words” by public figures, the police in Britain were becoming “more pragmatic,” and had dramatically reduced the percentage of people caught using marijuana sent to jail.
Three years later, Schlosser followed up on his 1994 two-part series in an Atlantic article called “More Reefer Madness.” By then, many states were exploring alternative—and less expensive—sentencing practices, such as drug-treatment programs, intensive probation, short-term (90-day) stints in jail, or boot camps. Now Schlosser advocated more overtly for the decriminalization of the drug for personal use and in small amounts, but he argued that laws should remain strict on driving under the influence, growing and selling marijuana commercially, using it in public, and distributing it to young people. He concluded:
A society that punishes marijuana crimes more severely than violent crimes is caught in the grip of a deep psychosis. For too long the laws regarding marijuana have been based on racial prejudice, irrational fears, metaphors, symbolism, and political expediency. The time has come for a marijuana policy calmly based on the facts.
In terms of arrests, not much has changed: There were about 659,700 marijuana arrests in 2017. Legally, there has been some change on the state level. Ten states and Washington, D.C., have legalized the drug for recreational use, and 33 states have legalized it for medical use; 22 states have decriminalized the drug. The federal government still considers marijuana a Schedule I narcotic (along with heroin, LSD, and peyote). As for mandatory minimum penalties, in 2016 the average time spent in prison for drug offenses of any kind was 94 months, which was more than twice the average sentence for offenders not charged under federal guidelines.
Public opinion, however, has shifted dramatically. According to data from the Pew Research Center, 62 percent of Americans said that marijuana should be legalized. In 1990, that number was 16 percent. Still, there’s an ongoing debate over the health risks associated with usage.
A number of 2020 Democratic candidates have made marijuana part of their platform. Senator Cory Booker of New Jersey recently reintroduced the Marijuana Justice Act, which would decriminalize the drug at the federal level and encourage states to legalize the drug by incentivizing them with funding. Kamala Harris, Kirsten Gillibrand, Bernie Sanders, and Elizabeth Warren have all signed on to the act.
But even sweeping reforms, Schlosser suggested when we spoke recently, will do little to remedy the consequences of the Reagan-era laws on those whose life they’ve already affected.“The amount of cruelty that has been imposed by marijuana laws,” he told me, “is impossible to measure.”
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