(This article was first published by Townhall.com in August and is reproduced by kind permission of Rachel Alexander)
A currently hip cause is to rail against sentencing pot smokers to jail time. It sounds good considering alcohol is legal, smoking pot is not considered harmful to others, and our jails are already overcrowded, straining taxpayers’ wallets. The only problem is there isn’t a shred of truth to it.
Sadly, many on the right have fallen into this trap. Attend a Republicans for Liberty meeting and some young, charismatic leader will give an impassioned speech ranting and raving about how terrible it is that we lock up people for simply smoking pot. To a cheering audience, they declare it’s all about liberty and stopping big government from its unsuccessful war on drugs.
I was a prosecutor for several years, and the facts are quite different. Smoking pot has actually been de facto legalised across the U.S. The police look the other way, even if a neighbour rats on someone. There aren’t enough police officers to enforce marijuana possession laws. In fact, when states began legalising pot for medicinal and recreational use, most pot smokers didn’t bother leaving their illegal dealers, because there is so little risk.
As a county prosecutor, I came across thousands of criminal cases (I frequently covered multiple hearings in different cases on a daily basis for other prosecutors assigned to those cases). I never saw a single defendant who was really sentenced to jail for marijuana possession. Former Los Angeles District Attorney Steve Cooley once said, “No first-time offender arrested in California solely for drug possession goes to prison — ever.”
Here is why there is confusion: the only time someone is sentenced to jail for smoking pot is if there is a more serious crime they are clearly guilty of, and the prosecutor or judge wants to give them a lighter sentence. Theft or burglary were the most common crimes I came across. Instead of being required to sentence a defendant to a year’s imprisonment for stealing, a defendant could plead guilty to marijuana possession instead and get a much lesser sentence. So on paper, it looks like they are serving time for drug possession, but in reality, they were let off the hook for a serious crime.
Police arrest individuals for other crimes and discover marijuana in the process — which can then, ironically, be used to the defendant’s advantage to get a lighter sentence! Additionally, no judge wants to go on record sentencing someone to jail for merely marijuana possession unless the defendant has a serious crime accompanying it.
This is only the tip of the iceberg. The vast majority of the defendants I came across had long rap sheets; pages and pages of criminal history. Much of it was not permitted to be disclosed to the judge, it was considered inadmissible; things like arrests with no conviction, dismissals, juvenile crimes, convictions older than the statute of limitations, etc. Many defendants had been arrested 10 to 20 times and it was clear they had a pattern of theft or other crimes — and generally caught with drugs every time — but the outcome was always the same, they were allowed to plead guilty to some lesser crime and often escape any jail time. It was eye-opening to see how many crimes a defendant had clearly committed based on their rap sheet, yet they would only end up getting sentenced for one of them.
Additionally, it has been found that the average criminal is only caught once for about every 12 crimes committed. FBI crime data from 2013 reveals that only 13.1 percent of burglary offences are ever solved. Add that to the crimes criminals do get caught committing, but escape consequences due to a good defence attorney, technical error by the prosecution, or other factor, and it becomes pretty clear that these folks are actually getting pretty lucky pleading guilty to marijuana possession.
Harder drugs and pot dealers don’t fare quite as well. But as long as they stay away from other criminal activity, they too are frequently left alone by the law. When caught, prosecutors also let them plea down to a lesser crime.
The problem is no one has the guts to stand up to this myth, afraid of being called a big government, authoritarian conservative. It’s much easier to look hip and make vague statements like “The war on drugs is not working.” There is no longer a war on drugs. There is the occasional ad campaign to warn teenagers against using drugs — and usually just hard drugs — but even those are directed at youth, not your average adult pot smoker. No one cares and no one enforces the law; it is treated like illegal immigration with law enforcement and the legal system looking the other way.
Obama is calling for an end to mandatory minimum sentencing, claiming there are too many nonviolent offenders behind bars. Several prominent Republicans are jumping on the bandwagon with him. Last month, Obama commuted the sentences of 46 “nonviolent drug offenders.” Does anyone actually believe even one of them was really serving time for drug possession, much less marijuana possession? Only the prosecutor and defence attorney will ever see their entire rap sheet, and are prohibited by law from disclosing it, so Obama gets away with this ruse.
Conservatives and libertarians shouldn’t buy into this typical rhetoric from the Left, which is to stand for something because it sounds good on the surface, when in reality the truth is much different. Regardless of one’s position on drug legalisation, stop saying that people are serving time behind bars for marijuana possession. You just look silly.