MINI-SAGA BEGS THE QUESTION: WHY IS POT CULTIVATION FOR PERSONAL USE ILLEGAL?

Now that the governor and Windsor County State's Attorney Robert Sand have
essentially agreed to disagree about marijuana prosecutions in Windsor
County, perhaps the time is right to toss out a much more fundamental
question: Why is marijuana cultivation for personal use illegal at all?
Specifically, why can't responsible, tax-paying, adult citizens of this
state grow marijuana for their own use on their own property if they wish
to? I realize this will strike some as a naive question and leave others
spluttering mad, but in the end there really is no good, much less
constitutional, reason for this conduct being prohibited. It's helpful to
first review a recent controversy: Martha Davis, a 61-year-old attorney and
part-time judge from Windsor, was found in possession of growing implements
and a sizeable quantity of marijuana. Her case was sent to Court Diversion,
a community-based program that allows people who have never been in trouble
before to avoid a criminal conviction by taking responsibility for their
offense and making reparations to the victim and the community.

The governor got wind of this and essentially flipped out, saying it was a
travesty of justice. He went so far as to order law enforcement to bypass
the state's attorney's office and send "significant" marijuana cases
directly to the attorney general or the federal prosecutor in Burlington.

Soon, it was reported that a Republican prosecutor from a neighboring
county had done pretty much the same thing the week before in another case
involving a homeowner growing marijuana for his personal use. The
controversy then quickly died out and the governor grudgingly made nice
with Sand.

This mini-saga, aside from its limited entertainment value, highlighted a
recurring dilemma for prosecutors created by antiquated marijuana laws:
What to do with good citizens charged with a serious, yet victimless crime?

After living her life right for 61 years, being a good neighbor and good
attorney, should Davis have been incarcerated, or convicted of a felony
because, apparently, she finds it beneficial in some way to use marijuana?

Any thoughtful prosecutor has had to confront this issue many times and in
my experience many of them are frustrated by the limited choices they have.
The law is on the books, so they can't just ignore it. On the other hand,
not many relish the prospect of destroying a good person's life for
engaging in civil disobedience of a law that treats adult citizens like
children.

So if you pay attention to these things you see a lot of these cases going
to diversion or deferred sentences, or disposed of with a fine. It's hardly
a solution though, because it doesn't address the fundamental problem,
which is the law itself. It's not that Davis was a bad person: She is a
good person who harmed no one, yet had her life fouled up by a bad and
stupid law from a bygone era.

Remember, marijuana possession and cultivation laws originated somewhere in
the mists of time at the beginning of the last century, back before women
could vote, a time of Sunday "blue laws," when segregation was legal and
abortion was a felony. (I could go on and actually, I will: being gay was
against the law, while beating your wife and children was not; if you were
considered "mentally incompetent" the government could sterilize you;
blasphemy and adultery could land you in jail. Sexual harassment? Please!)
It was a time when a small handful of white men wrote, enforced and decided
the law. In the intervening century or so a lot has changed, thankfully,
and notions of privacy and government paternalism have changed too. But
somehow the prohibition against citizens growing or using marijuana has
survived.

But why? What harm is prevented, and what societal good is obtained by this
law? Defenders of the status quo trot out the same tired old rhetoric,
starting always with some variation of the argument that it would harm
children or send the wrong message to children. Well, children should not
drink alcohol, smoke cigarettes or use marijuana.

Further, the black market economy created by prohibition probably provides
children more access to the drug since it is completely unregulated. The
"child card" is ultimately a disingenuous argument in any event, because
the debate doesn't concern children; it concerns adults being treated like
children. I have never heard a cogent explanation from any political leader
as to why adults cannot make this choice for themselves. If you think about
it, neither have you. The reason is there really is no good justification
for this law.

If the reasons for prohibition are somewhat vague, the harm caused by the
law is quite clear. Thousands of otherwise productive and law-abiding
Vermonters are put at legal risk every day. Doctors, cops, teachers,
professors and judges are among the professionals who risk their very
careers for conduct that is private and does not breach the public peace.
Millions are spent every year snooping on people's property and invading
their homes (traumatizing any children present in the process) while other
legitimate law-enforcement priorities remain under-funded. The black market
economy funnels untold riches directly to organized crime. All of this
money, all of this effort and all of this human misery has accomplished
exactly nothing.

Roughly the same number of citizens use marijuana today as used it last
year as used it 10 years ago. When this many citizens are willing to risk
so much to engage in this behavior, it's not a matter of them being on the
wrong side of the law, but the law being on the wrong side of the people,
and maybe it's time for the law to change.

Now, it is almost obligatory that anyone criticizing any drug law add that
they are not promoting the use of drugs, lest they lose all credibility. I
am not promoting marijuana use here, but not for that reason. Halfway
through my second decade as a criminal defense attorney, I can honestly say
that marijuana is not a harmless drug. In fact it is more powerful and
potentially dangerous than many users would care to know or admit. Still,
the greatest harm to people I have personally witnessed has been a result
of the fact that it is illegal. Tobacco is lethal, alcohol is wildly
destructive to the fabric of society in myriad ways, and marijuana can
potentially screw your head up. Used responsibly and in moderation, maybe
not, I don't know. What I do know is that an awful lot of Vermonters choose
to use it and in my experience some of the most industrious, creative and
financially successful people I have ever met are included in that group.
As adults, they can make a choice about this as it affects only them.
That's what free, grownup people do. At this point in our history, it is
simply laughable that the government would presume otherwise.

Let me finish with some language from the Vermont Constitution (a wonderful
document that is actually fun to read and available at your local library
or online). Chapter I, Article 1, says "That all persons are born equally
free and independent, and have certain natural, inherent and unalienable
rights, amongst which are the enjoying and defending of life and liberty,
acquiring, possessing and protecting property, and pursuing and obtaining
happiness and safety ..." (This section goes on to outlaw slavery - boy, I
love this state!) Enjoying life and obtaining happiness in the manner that
best suits each citizen. This is why we organized as a state, and it should
be the purpose of our laws to maximize people's freedom to do just that.

Why is cultivation of marijuana on one's own land for personal consumption
illegal? There is no good answer, or no answer that avoids arbitrary and
capricious distinctions, paternalistic, dated attitudes - there's no answer
that really makes sense. In my opinion it's just force of habit - it's a
bad and stupid law that has hung on a long time. History shows that bad and
stupid laws don't last forever, eventually people come to their senses and
demand a change. Surely someday these cultivation laws will go away.

The only question is how many good and productive citizens will be hurt by
them before they do.

Daniel Sedon is a lawyer who works in Chelsea.