The Crime of Criminal Priorities : Change in federal prosecution for marijuana possession creates unequal justice

Necessity may be the mother of invention, but another one of her kids is named Priorities.

And seldom are priorities clearer than when time or money runs out. The criminal justice system now has little of either.

To cope, crimes are prioritized. Although this is nothing new, the threshold for prosecution and jail sentences keeps going up.

For instance, because of local jail crowding, people arrested for such misdemeanors as battery, carrying a concealed weapon or shoplifting may avoid jail or even prosecution.

Recently, the U. S. attorney’s office reached a new threshold. Under a change of policy, people arrested by federal officers--usually crossing the border--with less than 100 pounds of marijuana will likely be allowed to plead guilty to a misdemeanor rather than a felony, if it is a first offense. Previously, the cutoff was 50 pounds.

The reason: a 61% rise in federal marijuana cases in the last year and an overall caseload increase of 18.9%.

At the same time, three federal judgeships have become vacant. So, not surprisingly, the court is having trouble keeping up.

The new policy seems logical. If you have to cull drug cases, possessing 100 pounds with the intent to sell is more serious than having 50 pounds, right?

Cutoffs have to be made somewhere, even though it is hard to understand how possessing 110 pounds could merit years in prison while 90 pounds will get you no more than one year in jail.

This new policy sends confusing signals to the public, who just three years ago were being subjected to the “zero tolerance” standard, under which people could be prosecuted for possessing fractions of an ounce of marijuana.

The more troubling aspect of this policy, however, is its built-in inequity.

The U. S. Constitution guarantees equal protection for everyone under the law. Yet, a person with two pounds of marijuana, prosecuted by the San Diego County district attorney’s office, could face a felony conviction; while a person with the same or a much larger amount, prosecuted by the U. S. attorney, could get off with a misdemeanor.

Is the solution to have the also overburdened state court system adopt the same threshold?

There is no easy answer.

But justice might be better served and the war on drugs more effectively fought with a set of priorities based on long-term goals, rather than lurching from political palliatives such as zero tolerance to the triage that requires 100-pound marijuana prosecution policies.