• Chris Zachar

Wisconsin's Dumb Marijuana Laws

Updated: May 25, 2019


Carve these words in marble in the Supreme Court building.

Perhaps the oldest staple in the war on drugs is a national prohibition on the possession of marijuana. I grew up with a vilified image of the cannabis plant: Nancy Reagan told me to just say no, police officers handed out DARE t-shirts and told us that drugs are bad, and even the gang in Saved by the Bell told us that “there’s no hope with dope.” Those of us paying attention were left with the impression that one puff of the devil’s weed would turn you into an instant addict, social degenerate, a rapist, murderer, or Hitler. Of course, we now know that all of this is nothing more than propaganda and lies.

So how did we get to this point?


Marijuana became the subject of absolute prohibition in response to a 1930’s smear campaign by the three richest men in the country. A right-wing publishing magnate and his business associate, who was then the Secretary of the U.S. Treasury, feared that production of hemp would impede profits from their paper and nylon industries. Of course, no good propaganda campaign would succeed without a healthy dose of fear-mongering and outright racism, so marijuana was painted as a dangerous drug that turned youth into degenerates and African Americans into bloodthirsty hordes. As a result, marijuana was nationally prohibited in 1937 by the federal marijuana tax stamp act. When controlled substances were classified by a uniform schedule, marijuana was classified as a schedule I controlled substance, meaning it has the high potential for abuse and addiction and no valid medicinal purpose.


Since that point, marijuana has remained in a small group of substances that are prohibited for use or possession. Throughout the 1990’s, states began experimenting with licenses for the medical use of cannabis. People suffering from seizures, cancer, nerve damage, glaucoma, and a host of debilitating conditions found relief from a natural alternative to highly-addictive opiates. In the mid-2000’s, several states, beginning with Colorado and Washington, legalized the recreational production and use of marijuana. Recreational marijuana is now legal is nine states and the District of Columbia, while medical marijuana is legal in thirty states. Many counties and local municipalities have decriminalized small amounts of marijuana (usually less than an ounce). This means that when a person is arrested with small amounts of marijuana, they receive a civil citation or a diversion program that does not end up in the criminal justice system.


How does Wisconsin handle marijuana violations?



That's right, we're sending people to prison in this state for marijuana

However, there is no generalized leniency for marijuana in Wisconsin (CBD, a non-psychoactive component in cannabis is legal to possess and consume). Simple possession of marijuana is an unclassified misdemeanor that carries up to six months jail and a $1000.00 fine, but can also result in the loss of driving privileges and directly impact the ability to apply for public benefits, public housing, and student loans. Second offense possession of marijuana is a felony that carries up to three and a half years in prison and a $10,000 fine. That’s right, if you have a prior conviction for possession of marijuana and an officer arrests you with any amount of marijuana in the future, you could become a convicted felon, go to prison, lose your right to vote, possess a firearm, or apply for a job on a level playing field ever again. For pot. But it gets better: the State is allowed to stack penalty enhancers on any minuscule amount of marijuana for future offenses. So if four years later you are pulled over with a one-hitter, you could be charged with felony possession of marijuana as a base offense, with a four-year felony repeater and an additional four-year prior offense penalty added on: up to eleven and a half years in prison for the smallest amount of weed.


But surely prosecutors exercise discretion in these cases, right? Wrong. How marijuana arrests are charged and prosecuted varies wildly by jurisdiction, and sometimes even the individual prosecutor. La Crosse County has a fantastic first offenders program that allows first timers, (and even some repeat offenders) caught with small amounts of marijuana to avoid prosecution altogether and move on with their lives. But in surrounding counties, a gram of marijuana will result in full-scale prosecution with demands for criminal convictions, jail time, and loss of driver’s license.


The rationale for prosecuting marijuana offenders varies depending on circumstances, but usually I see one of two explanations for prosecuting clients for marijuana possession:


(1) The prosecutor believes that prosecuting a person for marijuana will somehow “help” them. These folks tend to believe all of the scientifically-invalid theories taught by DARE officers across the country: that marijuana is a terrible and addictive substance, will lead to “hard drug” use, or will lead a person to commit crimes in pursuit of buying more weed. They believe that placing a defendant of probation, making them perform community service, or sticking them with a criminal conviction will cause them to learn a lesson, or cure them of a (likely non-existent) drug problem. While usually well-intentioned, these types of prosecutions are premised on the vastly-exaggerated risks pedaled by cannabis fear mongers over the last century.


(2) The prosecutor believes that a defendant is willfully violating the law by possessing marijuana and must be punished. A popular viewpoint among the prosecutors bent towards authoritarianism, this philosophy can be narrowed down to: “because I say so.” These prosecutors believe that anyone who relaxes with a joint after work is a criminal who uses cannabis because they believe they’re above the law. Of course, marijuana use is not inherently evil. Over 55 million adults in the United States regularly use cannabis. They’re nurses, lawyers, teachers, mechanics, your neighbors, friends, and public servants. They aren’t violent, they aren’t neglecting their children, they aren’t having any negative impact on their communities. In short, none of them are criminals. But a prosecutor with this type of mindset has a very difficult time seeing marijuana use as anything other than a willful violation of the law.


With the power to prosecute comes the power to imprison. Even in 2018, Judges in Wisconsin are sending people to prison for growing, distributing, possessing, or even using marijuana. While most people are not imprisoned for simple possession, there is a shockingly high number of people in the Wisconsin Prison System right now as a result of marijuana-related offenses on probation or extended supervision. According to the Wisconsin State Journal, last year more than 3000 inmates were returned to the State prison system for violations stemming from “status” drug offenses, the majority of which involved use or possession of marijuana. The base cost of incarcerating a low-medium inmate in the Wisconsin State Prison System for one year is $32,000. The simple math tells us that Wisconsin taxpayers are footing an approximate bill of 96 Million dollars annually just to lock up nonviolent pot violators. And this number doesn’t include inmates incarcerated for possession with intent, delivery or manufacturing THC who were not revoked from probation. From a fiscal perspective, this is an insane waste of money. (although it’s a drop in the bucket for the 1.6 billion dollars taxpayers contribute to the Department of Corrections annually). That’s millions of dollars that could be poured into schools, roads, drug treatment, or effective enforcement of drugs that are actually killing people.


Why should we legalize marijuana in Wisconsin?



Zing!

COST/BENEFIT ANALYSIS OF THE DRUG WAR


My number one reasons for supporting marijuana legalization is that we’ve reached the point where enforcement of the prohibition does more harm than it does good. We spend hundreds of millions of dollars investigating, arresting, prosecuting and imprisoning people for dealing in a plant that has never killed anyone. While marijuana can be abused, the potential harm doesn’t even scratch the surface of the body count left by the opiate epidemic sweeping throughout the United States. If we must use public funds to further the drug war, why not do so on the substances that are actually killing people?


As someone on the front lines of the drug war, my personal opinion is that it’s entirely ineffective. People want to get high. And they will continue to do so until the end of time. No matter how aggressive the enforcement, or how draconian the sentence, the government will never end the cultivation, sale, and use of marijuana. But our government has a bad case of sunk cost fallacy, the belief that because we already spent so much on a project, we have to justify our earlier expenses by continuing to throw money at a losing cause. Right out of law school, I drove a Ford Tempo. It had 230,000 miles, manual windows, and no functioning air conditioning. I had to use my first real paycheck on a new muffler. Then a fan belt went out. Then a tire. Then the transmission. One day, I added up my costs and figured that the anticipated repairs far exceeded the value of just getting another car. So even though I stressed about all of the money I spent fixing up my beater of a car, I realized that continuing to throw money at repairs was a waste. Our government is doing the same thing with the war on marijuana, only they’re doing it with hundreds of millions of dollars. It’s time to ask what we’re getting for our money, and cut the cord when the expenditures don’t make sense.


TAKING THE BITE OUT OF THE BLACK MARKET


Since marijuana isn’t legal in Wisconsin, anyone looking for a fix has to participate in the black market. Drug dealers aren’t beholden to consumer protection laws, and allowing the black market to exist ensures that there is no testing or labeling requirements that ensure consumers know the content of their product, or know that it was produced safely. Moreover, in a black market, distributors cannot turn to law enforcement for protection, and sometimes use violence to protect their product. Finally, dealers aren’t beholden to limitations on selling to minors or vulnerable people.


However, if a person looking to smoke a bowl could walk to the local dispensary, they could receive a precise amount of product, labeled with the exact amounts of THC and CBD, and be assured that the bud they are smoking is not contaminated with chemicals or pesticides. In the event of a robbery, the dispensary could rely on protection from the police, and contact an insurance provider to compensate them for their losses. It should go without saying that a regulated, licensed dispensary would not solicit vulnerable buyers or sell to children.


FUNDING THE TAX COFFERS


Much like alcohol, cigarettes, and the lottery, marijuana is a luxury product. The State could tax it at 100 percent and people would willfully pay to partake. In 2017, the State of Colorado took in nearly 250 million dollars in marijuana tax revenue alone. That’s a lot of potholes (pun intended) that the State could fill with these extra dollars. This figure doesn’t include spillover spending in local communities as a result of marijuana business. For instance, I have to imagine that Doritos posted record gains when the dispensaries opened.


Moreover, with reduced focus on enforcing and prosecuting the possession of marijuana, the Colorado Justice Department and legal system had millions of additional dollars to spend on other priorities, such as education, drug treatment, and targeting opiate and methamphetamine dealers.


LIVING IN 2018


When marijuana was banned in 1937, antibiotics weren’t commercially available. X-ray machines were not in use. Chemotherapy was non-existent. People died at alarmingly high rates from simple infections. And medical professionals believed that THC was highly addictive and could turn people into violent degenerates. There was a lot they didn’t know then. We don’t need to adhere to a century-old myth for the purpose of continuity, when modern scientific research tells us that researchers in 1937 had it wrong.


ELIMINATING DISPROPORTIONATE ENFORCEMENT AGAINST PEOPLE OF COLOR


We've established that people are sitting in Wisconsin prisons for growing, selling, and using marijuana. So who are they? Not the middle class white male lighting up after work. Wisconsin disproportionately arrests, prosecutes, and incarcerates people of color at a rate that continues to shock even me. In fact, Wisconsin has the dubious distinction of incarcerating more people of color than every other state in the nation. That's right, we lock up more racial and ethnic minorities, per capita, than Mississippi, Georgia, Louisiana and Florida. This shameful statistic is due in large part to the fact that people of color are far more likely to be arrested, prosecuted, convicted, and sent to prison for marijuana offenses in this state.


TREATING PEOPLE LIKE HUMAN BEINGS


A fundamental tenet of my practice is that I don’t represent ‘criminals.’ I represent people. Our government treats cannabis users as criminals because they commit a regulatory offense, but never stop to ask whether those ‘offenders’ have done anything wrong. In legal Latin, the term for a marijuana offender is “mallum prohibitum,” a regulatory offender. Sparking up a joint is not inherently evil, or “mallum in se”, because it doesn't hurt anyone (other than arguably the person smoking it). Nobody should be treated as a criminal for


But the sad fact is that people convicted of marijuana offenses are treated as criminals; often for the rest of their lives. A criminal conviction allows employers in Wisconsin to legally discriminate against them in hiring, promotion, and termination decisions. Criminal convictions for simple possession of marijuana allow the federal and state governments to deny student financial aid, access to foodshare and public housing,


So what are the arguments against legalization (and why don’t any of these arguments hold up)?



This stuff is blowing my mind, man!

IT LEADS TO A SLIPPERY SLOPE!


I deal with the slippery slope argument every day in the legal profession, and find it to be one of the least compelling positions out there. We see this position in the argument that marijuana is a ‘gateway drug.’ Nancy Reagan had people believe that marijuana was a “gateway” drug that would lead to heroin, meth and human sacrifice. But that’s bullshit. Millions of Americans smoke pot without turning to other drugs. Millions smoke cigarettes without firing up a crack rock. And don’t get me started on alcohol. We can, and do draw lines based on the degree of anticipated harm in every aspect of regulation. That’s why twelve year olds can’t drive. That’s why physicians have prescribing limits. And it’s why we can legally purchase and consume alcohol and tobacco products in Wisconsin.


Alcohol and tobacco are objectively more harmful than marijuana. Both are physically addictive. Both cause cancer. Alcohol is objectively responsible for a substantial percentage of offenses leading to prison sentences in the State of Wisconsin. Hundreds of people die each year from drunk driving collisions and many more die from the related health effects of alcoholism. But La Crosse still has one of the highest per-capita presence of bars, taverns, and liquor stores in the United States. We’ve made the decision that the risks of people drinking and smoking are ones that we can tolerate.


PEOPLE WILL BE DRIVING HIGH!


Newsflash: people already drive high. People already drive drunk. In fact, Wisconsin has the highest per capita rate of drunk drivers in the nation. But this fear is a classic case of correlation error. The decision to get behind the wheel is divorced from the availability of intoxicants. That’s right, plenty of people can drink or smoke to the point of intoxication and still call an uber to get home. Whether people smoke marijuana obtained from a licensed dispensary or the black market will not change the fact that most people are responsible enough not to drive while impaired and others will do so every time. Whether the weed is legal or back alley won’t change this decision making process on whether it is safe to drive home.


While there is some data from Colorado and Washington State that shows higher rates of traffic collisions post-legalization, that data does NOT attribute this increase to driving under the influence of marijuana. Legalization opponents love to point to these studies and scream that the increased rate in collisions must be due to marijuana legalization. They fail to point out that the statistics in no way reflect data on the cause, severity, or circumstances of an accident. More importantly the statistics included increased criteria for reporting accidents: meaning that authorities are required to report more accidents for statistical analysis than they were before. With increased reporting, of course the rate is going to go up. Correlation does not equate to causation, and as applied to this case, more reported accidents does not equate to more accidents caused by pot.


This defense is less effective when you're not president.

I HEARD THAT MARIJUANA IS MUCH MORE POTENT NOW...THAT SOUNDS SCARY!


It's true: Growers are produce plants with higher THC concentrations and sometimes breed out CBD, the component that counteracts the psychoactive components of the plant. When you buy from a dealer, your only option is to inhale and hope for the best. With legalization, dispensaries are required to test and label the level of THC and CBD in every product sold to consumers, taking the guesswork out of the equation. Transparency is vastly increased with legalization.


Naysayers love to claim that high-grade strains of marijuana cause psychosis, but this is totally unsupported by medical evidence. The Centers for Disease Control has noted no empirical increase in schizophrenia or chronic psychosis in the jurisdictions that have legalized marijuana. While users are more likely to experience a bad trip with higher THC concentrations (and can explain an increase in marijuana-related emergency room visits in states with legalization), it doesn't appear to be causing long-term psychosis in users. This position brings to mind a line I commonly use during sentencing: my client's pot has never killed anyone. In the entirety of history, nobody has EVER died from marijuana overdose. If someone has a bad experience with higher-concentration THC, they can choose not to smoke, to smoke a mellower product, or to smoke in moderation. Calling for a continued ban on marijuana because it has a higher THC concentration is like calling for a ban on whiskey because it makes people drunk faster than beer.


WHAT ABOUT THAT ONE CASE WHERE SOMEONE DID SOMETHING EXTREME?


There is always an extreme counterpoint to every argument. If you’re looking for an example, pull up Youtube and search for “Nancy Grace Marijuana.” She's always screaming about a single aberrant incident that is in no way representative of the vast majority of pot users. So what about that one 2 year old who took a pull from his dad’s bong? What about Nancy Grace's babysitter potentially "getting stoned on reefer?" There are 300 million people in America. One of them is bound to behave irresponsibly at any given time. Should we outlaw automobiles because one drunk parent lets their 10 year old drive home? How about kitchen knives – a person could cut herself on one of those! And don’t get me started on Tide pods…they should have been outlawed the second a teenager swallowed one. The fact is that some people are irresponsible, and some will inevitably do stupid shit with marijuana. That doesn’t mean that the vast majority of cannabis users can’t handle the responsibility of storing marijuana away from kids, and using it in moderation.


So what’s the end game?


Americans are fed up with an ineffectual drug war that leaves families shattered and nonviolent pot smokers branded criminals for life. The times are changing, but it’s a slow process. In the current political climate, I expect Wisconsin to be the last state to legalize marijuana, but I do expect it to happen in my lifetime. In the meantime, if you are arrested for a marijuana offense, get in touch with us and we’ll help you navigate the volatile world of Wisconsin’s marijuana enforcement.