DRUG LAWS FACE SCALES OF JUSTICE

State More Often Imprisons Marijuana Users

MONTGOMERY - Alabama spends about $4 million each year to lock up marijuana
users who wouldn't see the inside of prison in many states, according to an
analysis by the Alabama Sentencing Commission.

The judges, prosecutors and state leaders on the commission agree that
Alabama's drug laws need fixing. So far they haven't been able to agree on
reforms that might fly with the Legislature and the public.

But they are trying - starting with marijuana, a drug that rarely means
prison time in states such as Virginia.

"I can't remember anybody going to jail for pot in the last 15 years," said
Richard Trodden, Commonwealth Attorney for Arlington County, Va., referring
exclusively to possession cases. Virginia, like Alabama, treats dealers and
traffickers much more seriously.

The first conviction for personal-use marijuana is a misdemeanor in
Alabama. After that, possession becomes a felony no matter how small the
quantity.

About 1,000 people each year are convicted of felony possession, and nearly
40 percent of those are sent to prison, according to Sentencing Commission
statistics.

The Legislature created the commission in 2000 to address Alabama's crowded
prisons and bring about fairer sentences.

Several judges on the commission say they would prefer smarter options for
drug users. Harsh prison sentences punish addicts, but don't appear to be
stemming drug use.

"If the deterrent factor would work, would we have as much drug use as we
have in this country? Doesn't everybody know how tough the drug laws are in
this country? They really do," said Jefferson County District Judge Pete
Johnson.

Yet proposals considered this year at commission meetings have met sharp
resistance from district attorneys.

A suggestion discussed last month called for raising the quantity for
felony possession to more than a pound.

Montgomery County District Attorney Ellen Brooks, who represents Alabama
DAs on the commission, doubted lawmakers would pass such a bill, even if
the commission was behind it.

"I think going around saying you've got a pound of marijuana and it's a
misdemeanor is not going to sell well in Alabama," Brooks said.

Assistant Attorney General Rosa Davis, who represents the attorney
general's office on the commission, offered some explanation. Several
states surveyed treat personal use marijuana, no matter the quantity, as a
misdemeanor. In Virginia, marijuana only rises to felony levels if someone
sells it. Nebraska allows seven arrests before its a felony.

As far as legislators approving the pound limit: "I have a feeling they're
going to look at this and laugh in my face, but if you look at what's
happening around the country, the marijuana sentences are coming down,
down, down," Davis said.

Brooks agreed change is needed, but the pound allowance was too drastic.
"We're now providing folks with drug diversion, drug court, pre-trial
diversion. ... They're getting free bites at the apple," she said. "At some
point we've got to recognize that we're dealing with some people who are a
threat to society."

Heightening concerns are Alabama's budget crisis and lawsuits over packed
prisons. This year, the state doubled the size of the parole board to allow
more early releases of non-violent felons.

"We need space in our prisons for folks who are going to do a lot more
damage than these folks," Davis said, referring to marijuana users.

Alabama's incarceration rate is the nation's fifth highest. Alabama locked
up 612 people per 100,000 residents in 2002. The national incarceration
rate was 476 per 100,000 in 2002, the most recent year available, according
to the U.S. Department of Justice.

Fifteen percent of the people in Alabama prisons - 4,082 prisoners - are
locked up on drug crimes, according to the Alabama Department of Corrections.

Some judges on the Sentencing Commission said penalties for other drugs
need changing also, but marijuana is a start.

"I'm in favor of making marijuana possession one time or 10 times a
misdemeanor," said Ninth Circuit Judge David Rains, a commission member
who's been a judge 23 years in northeast Alabama.

"Sending people to prison is not solving the drug problems. It's just
creating an enormous financial burden on the state," Rains said.

That's what other states have decided. Minnesota, though tied with Maine
for the lowest incarceration rate at 141 prisoners per 100,000 residents,
has been reforming its drug sentences after a jump in the rates of people
locked up for drugs.

Even before the change began, possession of small amounts (42.5 grams or
less) of marijuana was always a misdemeanor. It took several arrests to get
prison for possession, usually in combination with other crimes. Sentencing
is on a point system with six points necessary to be considered for prison,
said Barb Tombs, director of the Minnesota Sentencing Commission.

She came there from Kansas, after working on reforms there. The first and
second drug arrests in Kansas now call for mandatory treatment, not prison,
she said.

"It switched from being a prison bed issue to the right thing to do,
because all we were doing was cycling these people through the prison
system at a very high cost, and not treating the source of the problem,"
Tombs said.

Shelby County District Attorney Robby Owens said Alabama's laws are
appropriate, no matter what other states do.

"The worst problem with marijuana is the fact that if you ride in those
circles, cocaine's going to be there, PCPs going to be there, the meth's
going to be there," Owens said.

"If you go toward the idea of legalizing marijuana . . . you're going to
put more and more kids in harm's way, because we as a society are telling
them go ahead and do this because we're not going to do anything to you,
and I am opposed to that course of conduct," he said.

Davis said the Sentencing Commission is not considering legalizing marijuana.

"We are looking at how our drug laws compare to other states and the
effectiveness of those laws here and in other states. In particular, we are
looking at marijuana possession for personal use only," she said. "The
commission does not condone the illegal use of marijuana, nor do other
states. We can, however, look at the penalties provided in other states and
compare them to Alabama and look for the most effective way to protect the
public safety."

Common ground:

Judge Johnson doubts the commission can agree on a recommendation this
year, despite obvious flaws in current law.

One example: current law makes marijuana possession "for other than
personal use" a felony. But it does not name a quantity. A DA in one county
could decide three ounces, divided into smaller bags, was a felony. In the
next county, eight ounces could be a misdemeanor.

Johnson presides over an innovative drug court that tries to treat
addiction with treatment first, instead of prison.

"We need to punish people for the lesser offenses not as harshly, so we can
punish people who kill people, who hurt people, who rape people, who are
shooting people, who are shooting into people's homes and those who traffic
in drugs, so we can put them in prison for a long time," Johnson said.