SENTENCING FOR MARIJUANA VIOLATIONS IS A MATTER OF POT LUCK

JEFFREY SCHWARTZ has been a public defender, county prosecutor and
criminal defense attorney. Before he came to his senses, he was even
a journalist, working for the National Law Review.

Thanks to those varied perspectives, more than 20 years into his
career, he has arrived at a conclusion about our criminal justice
system: The way we prosecute marijuana violations is lunacy, not to
mention a waste of money.

The Arcata-based lawyer believes this so strongly that he spends
about 60 percent of his time defending marijuana suspects.

"Typically, they're cultivation charges," he said, "and right behind
that is transportation. If it's both, the prosecution usually throws
in possession for sale."

Among the unfathomables in law enforcement's obsession with pot, he
said, are the stark inequities in sentencing, depending on where the
case is heard.

"I have three cases that are almost identical," he said. "They're all
indoor grows, involving about 800 or 900 plants, and some money.

"For the one in Humboldt County, the question is whether conviction
will mean jail or alternative time working at the animal shelter. For
the case in San Mateo, it could be 16 months to two years in prison.
For the federal case in Berkeley, it could mean 37 to 57 months.

"These are almost identical cases, but depending on the jurisdiction,
the sentencing is all over the place."

You might expect the feds to wield a bigger stick, but in Humboldt
and San Mateo the cases are for the same violation of the same state
law. The wildly varied sentences reflect the politics of the
communities, not the severity of the crime. Voters are more
conservative in San Mateo, and judges need voter support.

But it's not just sentencing that makes Schwartz roll his eyes. It's
also the massive commitment of government resources to enforcement. A
typical marijuana case can span eight or nine months, requiring
multiple court appearances.

"In Humboldt County, where I do many of my cases, it's
all-consuming," he said. "On felony cases, the county probably spends
50 percent of whatever resources it has prosecuting marijuana
violations. They create drug task forces, with the help of federal
and state money and investigate marijuana to the exclusion of more
serious drugs."

Methamphetamines, cocaine and heroin are illegal for good reason --
they can do serious damage -- but because those cases are harder to
make and often involve less money, cops focus on marijuana. Schwartz
remembers handling only one cocaine case in seven years.

"If you're growing or selling marijuana, what's the offense on the
end-user side?" he said. "Marijuana use is not even a misdemeanor in
California. So we're throwing people in prison for helping someone
commit an infraction. That's like arresting them for putting on a
jaywalking seminar."

Schwartz said it's also surprising how often authorities mistakenly
target a licensed medical marijuana grow.

"Many times we don't hear about it," he said, "but the cops will bust
in, 15 or 16 strong, at 6 in the morning, wake up people in their
underwear and find out that there's nothing illegal going on."

For those who land in jail, that's where Schwartz comes in. He often
finds privacy rights are violated during search-and-seizure. That's
how cases get dismissed.

He makes no apologies. Drug cops should be policing more serious drugs.

What they're doing now is, so to speak, reefer madness.