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Marijuana Mandatory Minimums: A Crime of Epic Proportions

A Comprehensive Overview: Arizona Marijuana laws, Mandatory Minimum Drug Sentencing, and Impacts on Society. 

Marijuana LawsDrug Conviction Results in Sentencing Typically Reserved for Murder

John was accused of a first-time, non-violent drug offense.  He had no prior criminal record, no evidence of drug abuse, and no prior drug convictions.

The Defendant was convicted and sentenced to the longest known prison term in US history for a drug conviction. A Florida judge ordered John to serve two life terms, plus twenty years, with no chance of parole.

Some reports indicate no Marijuana or other illegal drugs were found or produced in the drug investigation, and that the only evidence used to convict John was testimony by two informants.

Now 67 years of age, John was sentenced to life without parole 17 years ago, for conspiracy to import and distribute marijuana.  The arrest took place following a reverse sting operation, in Florida.

John’s family describes him as being a passive model prisoner, subject to the “harshest of conditions and treatment”.  John and his family declare his innocence; and say that he was simply at the wrong place, at the wrong time, with people he didn’t know.

Sending a man to die while serving two life sentences in prison, for a crime he did not commit is without a doubt a violation of basic fundamental human rights, and the truest of injustices in and of itself.

If for one moment we try to set aside the issue of innocence over guilt, and look at this punishment, I think most would agree that it is polarizing.  If in fact a crime took place, and the defendant played a role in it,  does such an egregious punishment fit the crime?   In this case, the judge ordered a sentence that is more commonly reserved for one guilty of homicide.

Many people, including Judges, are struggling to make sense of the harsh punishments called for under Mandatory Minimum for drug crime convictions.

Under Mandatory Minimum drug laws, a judge does not have the same discretion needed to reduce a sentence so that it is fitting and just for the crime of which the defendant is convicted.   They are held to order minimum long term prison sentencing for drug crimes under those laws, regardless of the circumstances.

This brings our discussion to its core,  Mandatory Minimum Sentencing for drug crimes.  Currently, Marijuana is the most common drug offense committed in the US.  That is, for now anyway.  So our discussion will evolve around Marijuana offenses, arrests statistics, sentencing, defenses, economics, trends, and the impacts of Mandatory Minimum sentencing laws in Arizona and the USA.

The Mandatory Minimums Debate: “Justice v. Cruel and Unusual Punishment”

According to recent statistics reported by Families Against Mandatory Minimums (FAMM), the Federal prison population has increased from 28,000 to 218,000, nearly 8 times its size over the last 40 years. Many, including FAMM attribute the skyrocketing prison growth and overpopulation to mandatory minimum sentencing for drug convictions.

Mandatory Minimum (MM) sentencing laws are those that give judges far less discretion in sentencing and require long term minimum prison sentencing for certain drug offenses. They apply even to first-time, non-violent, low-level drug crimes.

These MM long-term and life sentencing guidelines have become the center of much debate in our Country, and prime targets of public scrutiny, and demand by the public. In addition to the exorbitant costs to tax payers, prison overcrowding, another primary element of the debate is the constitutionality of Mandatory Minimum drug sentences. Opponents argue that they are in violation of the Eighth Amendment rights afforded by the Constitution against cruel and unusual punishment.

Mandatory minimum sentencing laws were around long before increased MM laws were passed in the late 1980s by Congress and State Legislatures. They were intended to keep sentencing more consistent for certain crimes. However, the “War on Drugs” escalated in the 1980s during the Reagan Administration. As a response to public outcry over the safety of society in light of drug crimes that plagued the country, more severe MM sentencing was established. It was felt that by creating laws demanding more harsh punishments would reduce the incidents of drug offenses.

Since then, the cost of incarceration has spiked over 12 times what it was before the 1980s “War on Drugs” battle. Before the egregious sentencing mandatory minimums, the USA was spending about $540 million on Federal Prisons as compared to $6.8 billion dollars reported in 2013. Meanwhile tax payers are spending approximately $50 billion dollars a years to support State Prisons.

According to the Federal Register The Daily Journal of the United States Government, the average cost to house and guard an inmate in prison, in 2013 was approached nearly $30,000.00.

For the past the 4 decades the incarceration of non-violent, non-dangerous drug crimes has cost taxpayers trillions of dollars, without any significant evidence that it has reduced incidents of illegal drug offenses, or made streets in the USA safer.

Nearly 50 percent of all Federal prison inmates are serving time for drugs offenses; and one in five inmates are serving sentences for drug crimes in State prisons.

To address these issues, a bipartisan bill SB 1410 was passed by the Federal Senate Judiciary Committee January 30, 2014 known as the “Smarter Sentencing Act of 2014”. It serves to reduce prison sentences for non-dangerous drug offense convictions, which would lead to a reduction of spending of about $4 billion dollar over the next 9 years. The Congressional Budget Office (CBO) estimates that it would lead to a reduction of sentencing and early release of over 250,000 prisoners over that time span in comparison to current laws.

The US Sentencing Commission recently announced that it will continue its work with Congress toward reforms of mandatory minimum drug sentencing for non-dangerous non-violent drug crimes will be a priority over the next year. Earlier in 2014 the Commission unanimously voted to reduce some of the harsh guidelines in mandatory drug sentencing, as starting point in their efforts. The Commission recognizes that addressing these mandatory minimums is critical to reducing the prison overpopulation crisis, and sharply rising costs of incarceration and resources to meet the overpopulation demands.

Marijuana Arrests in the US: FBI and Federal Bureau of Prison Statistics

According to recent statistics by the Federal Bureau of Investigation (FBI), it was estimated that every 42 seconds a Marijuana arrest was made in the United States.

According to the FBI Uniform Crime Reports in 2012 there were over 1.5 million drug crime arrests in the USA. The total drug violations reported was 1,552,432. Of those Marijuana charges constituted nearly 750,000, nearly half of all drug arrests in the country. Of those, a staggering 88 percent, 658,231 were for possession and use, making it the most common drug crime in the country.

In January 2014 The Federal Bureau of Prisons reported that a total of nearly 99,000 inmates were currently incarcerated in Federal Prisons. This means that 49 percent of the all inmates serving in prison are there for drug offense convictions. Most of those are for Marijuana related crimes.

Where Can You Purchase Recreational Marijuana in Arizona?

There is no place in Arizona where a person can lawfully purchase Arizona outside of the AMMA Guidelines. Recreational Marijuana is currently prohibited in Arizona.

In Arizona, All Marijuana violations are classified as felonies. A person is in violation of Marijuana laws if they knowingly possesses or uses Marijuana outside of the scope of AMMA for under A.R.S 13-3405 (B):

  • Personal use and possession of 2 pounds or less of Marijuana, will face Class 6 felony charges.
  • Possession of at least two pounds of Marijuana will expose a person to Class 5 felony charges.
  • Possession of Marijuana equals four pounds or more of Marijuana they may be guilty of a Class 4 felony.

Penalties for convictions expose a person to prison terms. Statutory Threshold Amount for Marijuana possession is 2 pounds. Convictions involving amounts that exceed 2 pounds, or are repeat offense, call for more harsh punishments. With few exceptions, if a person is convicted of possessing more that amount, with few exceptions, a person will not be eligible for suspended sentencing, probation, pardon, or release from incarceration until they have served imposed court ordered sentencing.

In some cases, first time offenders may be eligible for a drug diversion program that will allow them to avoid jail in return for successful completion of a substance abuse program, known as TASC.

Marijuana Arrest Statistics in Arizona

According to the Arizona Department of Public Safety (AZDPS) crime statistics for 2012, there were a total of 28,935 arrests for drug crime violations. Of those, 15,001 or 52% of all drug crimes arrests were for possession or use, making it the most common drug offense in Arizona.

Arizona Marijuana Laws

Under Arizona Law A.R.S. § 13-3405 Possession, personal use, sales, transportation, distribution and production is prohibited. The law requires that the suspect must “knowingly” or “intentionally” be in possession, or be committing one of the other prohibited acts related to Marijuana.

A person may be guilty of violating this law, when the offense is outside of the requirements, provisions, exceptions and limitations afforded with the AMMA guidelines.

It is not a valid defense to claim that the person charged was aware of the Arizona laws. However, in order to prosecute the charges, the prosecution must be able to prove without a reasonable doubt, that the person knowingly used, or possessed the Marijuana.

Arizona Drug Sentencing Factors in Convictions

Sentencing and penalties for marijuana possession convictions vary depending on at least five factors which include:

  • First time or repeat drug offense;
  • Amount or quantity found in the suspects possession;
  • Quantity is below, equal or exceeds the statutory Threshold Amount;
  • Prior criminal history;
  • Age of persons involved in the offense;
  • Other crimes surrounding the Marijuana possession charges;
  • Mitigating or aggravated factors;
    • Whether or not the possession crime was dangerous, violent, or involved weapon crimes.

Possession of Marijuana or paraphernalia charges, or usually classified as Misdemeanors. However, the quantity of the drug found in a person’s possession is what drives the charges.

By this, it means that the higher the quantity allegedly found in a person’s possession, the more severe the charges and penalties for conviction.

If the quantity the Marijuana possessed exceeds the Statutory Threshold Amount of 2 pounds the possessor will be exposed to prison terms. The Threshold Amount is the street or market value of an illegal substance.

Mandatory prison sentencing guidelines apply for possession of quantities in excess of 2 pounds, even for a first time offense. Exorbitant fines of up to $in amounts $100,000.00 per defendant and up to $1 million for enterprises may be ordered in addition to other penalties.

Possession in any illegal drug, in higher quantities is perceived by law enforcement and prosecution as an indicator that the possessor of the drug was selling it or intending to sell it, distributing it, or transporting it for sale.

Eligibility Guidelines for Participation in a Drug Diversion Programs

In the case of first-time non-serious drug convictions, a defendant may be eligible for the TASC program. TASC stands for Treatment Assessment Screening Center. Successful completion of the charges may reduce it from a felony down to a misdemeanor and may serve to reduce or eliminates incarceration.

Participation in TASC is not an automatic entitlement program. The person must be considered eligible, and acceptance into the program must be agreed upon by the Defendant, Judge, Prosecution, and TASC itself. Though guidelines may vary, here are some general eligibility rules:

  • The defendant must plead guilty;
  • The Defendant must have displayed signs of drug addiction or abuse which resulted in criminal charges;
  • The violation was a first time offense;
  • The crime was non-serious, non-dangerous, non-violent;
  • The defendant has not been convicted of any prior violent or sexual offenses;
  • Criminal charges were limited to use and possession of a small amount of an illegal drug.

The eligibility guidelines, requirements, and limitations may vary between drug courts in which the jurisdiction where the Superior Court is located, and where the TASC programs are operated.

There is no such thing as a successful “cookie cutter” defense. An effective criminal defense attorney will conduct their own investigation, tailor and build a defense strategy that is unique to the facts and circumstances of that case. This is the only way to gain the best results.

10 Criminal Defenses for Marijuana Possession/Use Charges

An effective Criminal Defense Attorney will tailor and build a defense strategy based on the unique circumstances of each defendant’s case. Below are 10 common defense strategies that might be used to challenge drug charges and evidence:

  • Unlawful search and seizure;
  • No probable cause of arrest;
  • Wrong person was arrested;
  • Miranda Rights were not read;
  • No knowledge that the Marijuana was in your possession;
  • No knowledge that the Marijuana was consumed;
  • Challenging quantity in possession, especially the Threshold Amount;
  • Entrapment by police;
  • Actions were within the AMMA laws guidelines
  • Procedural rights, trial rights, or other Constitutional Rights violations

It is important to keep in mind that if you wish to challenge your drug charges it is important to plead “not-guilty” and invoke your right to be represented by an effective criminal defense lawyer. This will increase your chances of getting a favorable resolution to your matter.

Marijuana Economics

Some financial experts project  that governments that legalized Marijuana would reap revenues that exceed $3 billion dollars annually; and up to $10 billion annually by 2018. Those projections are compelling, and apparently difficult for states and government to ignore, when debating about the legalization of Marijuana.

Each year we are seeing more states are passing laws to legalize Marijuana narrowly, or broadly. Legalization in any form creates opportunities for financial gain from cultivation, dispensary retailers, jobs, and retail profits, state and federal taxation revenues, and opportunities for start-ups.

Photo Credit: Donald Petersen, Law Office of Donald Petersen

On September 17, 2014 The New York Times recently wrote about a Company, Mjardin Management, whose operations involve helping licensed cultivators set up nurseries, grow plants and run their businesses. Spokespersons for Mjardin reported that the company is currently reorganizing in with the long term goal of listing on the stock market with a traditional public offering.

In Arizona it was reported  that at least one state lawmaker proposed legalizing recreational Marijuana, to raise tax revenue due to a massive budget shortfall which is projected to be $667 million dollars in 2015, and $1 billion dollars for 2016.

Whether you are a proponent or opponent of legalization, there is no denying that Marijuana is big business. Profits are expected to grow, businesses prosper, and states tax revenues rise sharply over the next 3 to 5 years, as a result of legalization.

Drug Defense Attorney for Marijuana Charges

Any Marijuana charge is potentially serious because all felonies call for prison sentencing. No matter how serious the crime by law you are entitled to retain an effective criminal defense attorney to defend you charges, and protect your rights.

Even if you are interested in applying for TASC it is important that you retain qualified legal representation. It is never a good idea to go to court without proper legal representation, especially if you face drug charges, or other serious criminal charges.

You should always consult an experienced attorney if you face drug possession charges, to discuss your options for defense. If retained, your lawyer will protect your rights and defend your charges. Their goal will be to provide you with qualified representation and secure the best possible resolution to your matter.

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