Pubdate: July 30, 1999
Source: Isthmus (WI)

THE WAR ON POT - Part One Of A Two-part Series.

Reefer madness. Think possession of small amounts of marijuana in Dane
County is no big deal? What have you been smoking? Bill Lueders reports.

Even in liberal Madison, possession of marijuana is a serious offense--and
a huge drain on the resources of the criminal-justice system.


Lester Pines, a Madison defense attorney, calls it "the most enormous waste
of prosecutorial resources I have ever seen in my life." He referring to a
case involving a UW-Madison freshman who in the fall of 1997 was smoking
pot in his dorm room with friends, as have thousands of UW students through
the years. A dorm official smelled that smell and called police. They
searched the room and found, Pines recalls, "a little bit of marijuana, a
bong, maybe a roach clip." Pines client-to-be was arrested, booked,
fingerprinted and charged with two crimes: possession of marijuana and
possession of drug paraphernalia.

"Here he is, in his freshman year and he's in criminal court," says Pines,
who mentions that the confiscated bong was "a lot smaller" than the
six-person hookah that belonged to one of his own college roommates. Pines
tried to have the charge reduced to a city ordinance violation, as he had
in a previous pot-possession case. Thus his young client would have gotten
a fine, rather than a criminal record.

But Pines says Amy Smith, the assistant DA handling the case, refused to
drop criminal charges, offering only to divert the student into drug court,
an intensive regime of appearances and drug tests. This was not an option
for Pines' client, who was so shaken by his experience that he had dropped
out of the UW and returned to his home state, making regular appearances

In the end, the young man agreed to drug treatment and testing in his home
state, even though Pines doesn't think he had a substance-abuse problem.
Smith, for her part, blames Pines for this outcome. "Lester came up with
that proposal [for treatment and testing]," she exclaims. "It was his idea.
I didn't make that kid do anything." Pines responds that, given Smith's
intransigence, this "was the only way to avoid a criminal conviction."

He says it took a number of meetings and phone calls before Smith agreed:
"It wasn't an easy sell." According to Pines, the young man's family ended
up paying between $4,000 and $5,000 in legal fees, treatment costs and
fines. "It led me to believe that there is an entire industry that exists
around marijuana and its suppression," says Pines. "It's a big industry and
a big waste of money."

Worst of all, charges Pines, it's an industry driven by people who have
themselves engaged in the same behavior. "There's an entire generation of
judges and prosecutors who used marijuana in college and law school," he
says. "It's hypocritical and it's really kind of sick."

But it's as common as pimples on teenagers. Although many Madisonians
consider marijuana use to be no big deal and assume the legal system does
also, hundreds of people are criminally prosecuted each year in Dane County
for possession of often tiny amounts of pot. And while police have the
authority to treat pot possession as an ordinance violation, which entails
a $100 fine, the majority of pot-possession cases in Madison are now
treated as crimes.

Indeed, the criminal prosecution of people for possessing pot has grown so
common and intensive that it's prompting a backlash from some of its prime
beneficiaries--defense attorneys like Pines. "You have frequent charges of
possession of marijuana and possession of drug paraphernalia," he says.
"It's an everyday occurrence. And it's a complete waste of time, money and


Does Smith, now with the State Justice Department, consider pot
prosecutions a waste? "That's not a decision for me to be making," she
says. "That's a decision for the policy makers. Whatever the elected
official tells us to do, we do."

Smith worked in the DAs office until May 1998, six months after Diane Nicks
became district attorney. She says the policy in place then was a
continuation of the one set by Nicks' predecessor, Bill Foust.

That policy, explains Foust, now a Dane County judge, was that unless a pot
possession case involved drunk driving or other criminal behavior, his
office would "routinely offer" to plea bargain down to a disorderly conduct
charge or local ordinance violation. But this is not what happened in the
case involving Pines' client, which began under Foust's reign and ended
under Nicks'. And, Foust concedes, even when charges are reduced per this
policy, people are still initially charged with criminal possession. "A lot
of these cases involve really small amounts-- grams--of pot," says Morris
Berman, a local defense attorney. "These could be charged as an ordinance
violation, but they're being charged as criminal offenses."

Being charged with a crime, either a misdemeanor or a felony, entails the
risk of jail time and/or a criminal record. An ordinance violation, in
contrast, is like a traffic ticket. It's a civil, as opposed to criminal,

Two decades ago, Madison was at the forefront of efforts to decriminalize
pot. Madison voters overwhelmingly approved referendums to this effect in
1976 and 1977, and the Madison Common Council responded with ordinances
establishing a $5 regular and $25 maximum fine for possession of up an
ounce. In 1983 this fine was hiked to $50 and in 1987 to $100, where it
remains. And, until 1991, marijuana brownies were sold openly at the
Mifflin Street Block Party.

But those days are gone. The anti-drug saber-rattling by Presidents Reagan
and Bush was followed by even greater War on Drugs spending by President
Clinton. According to the National Organization for the Reform of Marijuana
Laws (NORML), marijuana arrests in the U.S. have gone up every year since
1991, reaching 695,000 in 1997. Upwards of 80% of these arrests, the group
says, are for possession.

In Dane County, marijuana possession accounted for 873 (62%) of the 1,394
adult drug cases in 1998, as well as 307 (72%) of 427 juvenile cases,
reports the state's Office of Justice Assistance. These numbers include
cases handled as ordinance violations as well as those treated as crimes.

The Madison Police Department's policy manual once directed officers to
issue citations in cases involving an ounce or less; that provision has
been removed. Today, people who have past drug charges, criminal histories
or who don't cooperative with police will usually be charged with crimes.

From Jan. 1, 1998, through May 23 of this year, Madison police issued 247
citations for marijuana possession. During the same 18-month period, at
least 322 cases involving pot possession were treated as crimes. (The crime
figure includes only those cases in which pot possession is the only
offense, or the offense that's listed first.)

Why the tougher tact? Asst. Chief Ted Balistreri of the Madison Police
Department cites several factors. First, he says, marijuana today "is much
more potent than five, six, seven, eight years ago." Second, pot dealing
has become more profitable, involving "high-level dealers." And third, he
suspects more marijuana is being discovered via search warrants, which are
on the rise.

District Attorney Nicks released some records with a cover letter, but
refused to be interviewed for this article or to respond to written
questions, saying she did not trust Isthmus to be fair. The office's three
primary drug prosecutors--Mary Ellen Karst, Ken Farmer, and Ami
Larson--also declined opportunities to comment.

Marijuana prosecutions were a pivotal issue in last year's race for
district attorney. Peter Steinberg, an independent, ran on a promise to
"institute a moratorium on marijuana prosecutions." He ended up getting 8%
of the vote, mostly at the expense of Democrat Deirdre Garton, who like
Nicks came down on the side of continued enforcement. Nicks won the
election with 46.5% of the vote.

"Deirdre probably would have won had she coopted [Steinberg's] stance" on
pot prosecutions, says Pines. Steinberg wholeheartedly agrees: "Hell, if
she had done that, she'd have gotten my endorsement." During the campaign,
Nicks denied that too much time was spent prosecuting people for pot. "We
make a distinction between the big dealer and the small user," she told
Isthmus. "Our resources are precious, and we want to get at more serious
crimes." But public records, including some made available by Nicks in
response to an open-records request, tell another story.


A database count shows that, between January 1 and June 30 of this year,
the Dane County DA's office brought misdemeanor drug charges against 268
adults. Of these, 210 (78%) were charged with possession of marijuana, or
THC. Sometimes, there were other charges--most commonly possession of drug
paraphernalia but also disorderly conduct and retail theft and possession
of other drugs. During the same six-month period, the office charged 259
adults with drug felonies. Half of these, 130, were charged with possession
of THC. (By definition, a felony is any offense for which the maximum
incarceration is a year or more. People convicted of felonies lose the
right to vote, own a firearm or hold certain jobs.)

In 1986, 1987 and 1988, amid the anti-drug crusading of Ron and Nancy
Reagan, a total of 245 adults were prosecuted for THC possession in Dane
County, according to a report made available by Nicks. In contrast, an
Isthmus count found that, during the three-year period that ended June 30,
1999, the Dane County DA's office has charged more than 1,900 adults with
crimes, including about 720 with felonies, for pot possession. "They're
prosecuting way too vigorously," says Charles Giesen, a local defense
attorney who serves on the legal committee of NORML. "Way too many
resources are spent on these cases."

At root, Giesen sees an "institutional problem" that stems from the flood
of federal dollars for local drug prosecutions. "They get funding for extra
staff positions," he says. "They get a substantial grant every year. It's
something of a bounty for them."

The Dane County DA's office received $63,675 in federal Anti-Drug Abuse
grant money, matched with $21,225 from the county, for the fiscal year
ending June 30, 1999, according to the state Office of Justice Assistance.
This money goes toward the salaries of two drug prosecutors, Karst and
Larson. Federal Anti-Drug Abuse money is also currently paying the salary
of a paralegal in the DA's Office assigned to work on drug cases. The Dane
County Narcotics and Gang Task Force secured this funding last fall with a
memo citing "overwhelming case loads" in the DA's office.

"For the period 6/97-11/97, case counts totaled 106 felonies and 115
misdemeanors," it stated. "For the period 12/97-5/98, case counts totaled
230 felonies and 311 misdemeanors."

The problem, says Giesen, is that federal funding is tied to caseloads, not
the seriousness of the offense. A felony prosecution for pot possession
counts the same as one for selling crack to school kids.


How is it that people are now routinely being charged with felonies for the
same offense that 20 years ago would have drawn a $5 fine?

Normally, the maximum statutory penalty for pot possession is a $1,000 fine
and six months in jail. But the law provides an enhancer that doubles the
penalties for people who have previous drug convictions. This makes it a
felony charge.

Defense attorneys say Dane County prosecutors apply the enhancer routinely.
"It appears," says Dorothea Watson of the State Public Defender's Office,
"that they charge a felony every time that they can."

Printouts provided by Nicks show that between Jan. 1, 1998, and April 2,
1999, the county's three main drug prosecutors--Farmer, Karst and
Larson--filed felony charges for second-offense THC possession about 200
times. In about 85 cases, it was the only charge. Commonly, but not always,
the DA's office agrees to dismiss the felony enhancer if the defendant
pleads guilty or no contest to a lesser, misdemeanor charge. "They use it
as leverage to get people to plea, to avoid a felony conviction," says
Giesen. "It's a pretty strong incentive."

In some cases, the threat of felony charges dissuades defendants from
challenging the manner in which evidence was obtained. Giesen cites one
"fairly typical" case in which his client denied having consented to a
search of his car. If the client tried to argue that the search was
illegal, "he was running the risk of being exposed to the felony enhancer."
Instead, he accepted a plea bargain in which the enhancer was dismissed. A
common perception among local defense attorneys is that there is little
consistency in how the Dane County DA's office handles marijuana (THC)
possession cases.

They say the type of deals offered seem to depend less on the particulars
of the offense than on the prosecutor--or even the prosecutor's mood on a
given day. "There's no ostensibly coherent policy in the District
Attorney's office on these cases," asserts attorney Rick Meier, who
frequency represents defendants charged with possession of pot and/or
paraphernalia. "You never know what to expect. There's just no rhyme or
reason behind it."

Attorney David Mandell suspects that most decisions on pot cases are made
by individual prosecutors, not Nicks. "Like her predecessor, she doesn't
micromanage attorneys in her office," he says. "She probably doesn't have a
clue what's going on."

In response to an inquiry from Isthmus, Nicks sought information on the
office's pot possession policies. "We don't have any actual, adopted
formalized guidelines," responded assistant DA Karst in a June 25 memo. But
she says Farmer "put together some proposed ones some time ago, which
pretty much memorialize how we are handling these cases."

A memo to Nicks dated Nov. 5, 1998, two days after last fall's election,
outlines "proposed guidelines" that "may be helpful in reducing the number
of minor THC offenses we charge criminally." These guidelines establish
that anyone caught with more than seven grams (one-quarter ounce) will be
charged with a crime, either a felony or a misdemeanor, depending on their
criminal history. Even cases involving less than sevens grams will be
charged criminally if certain factors are present: the person was charged
with another crime, was uncooperative with police or qualifies as a repeat

But Farmer, in a memo to Nicks dated Feb. 2 of this year, lists logistical
problems with "the new charging guidelines." One is whether, in city of
Madison cases, the city or the county's ordinance should be used in lieu of
criminal charges. If it's the city's ordinance, explained Farmer, "the case
goes to Madison Municipal Court and we totally lose control over the
disposition, which the police are against."

Who in the Police Department opposes routing these cases to Judge Shelley
Gaylord's Municipal Court, which would bring revenue into city coffers?
Farmer and Nicks aren't talking; Balistreri, the MPD's assistant chief,
says he knows of no such objections. Another problem identified by Farmer
is that the county has no paraphernalia ordinance. He says it would be
"unfair" to charge only those paraphernalia cases that occur in Madison and
"absurd" not to charge at all. He suggests asking the county to pass a
paraphernalia ordinance or charging these as possession cases, based on THC
residue. (For this memo and more, check Document Feed at

In closing, Farmer states: "An overall solution is to still charge all such
cases criminally and reduce charges as per the guidelines. In this way, the
technical problems evaporate in the process of plea bargaining. The
disadvantage is there is no savings of resources necessary to prepare
long-form complaints." In other words, let's just keep doing business as
usual, charging crimes even in cases where the goal is not to get criminal
convictions, despite the burden this places on the system.


To some observers, the way the DA's office handles pot prosecutions
reflects a larger picture. "There's a lot of overcharging that goes on,"
says Krista Ralston of the UW's Legal Defense Program, which assigns law
school students to represent people charged with misdemeanors. "And then
they complain about being overworked and having too many cases."

Attorney Mandell, a representative for NORML in Wisconsin, says Dane County
is somewhere in the middle in terms of how it handles pot possession cases.
It's not as "Draconian" as some other counties, but "not as liberal as it
used to be." Overall, he says, "they just don't have a sense of the lack of
seriousness of the offense." Others say the problem is compounded by the
tendency of the DA's office to "pile on" charges. For instance, people
caught with marijuana and a pot pipe are commonly charged with two
offenses: possession of THC and possession of drug paraphernalia.

A data-base count shows that, between Jan. 1, 1998, and June 30, 1999, more
than 1,100 people have been charged with possession of paraphernalia in
Dane County. Usually these are brought along with other charges, but
sometimes it's the only charge (see sidebar, "A case in point," P. XX).
Although all kinds of paraphernalia are included, attorney Mark Frank says
"Most paraphernalia charges I see are for pot pipes."

Drug cases are cash cows. As part of plea agreements, defendants are
commonly asked to make "contributions" to drug education programs, usually
in $200 or $300 chunks. Since January 1998, the D.A.R.E. program run by the
Dane County Sheriff's Department has received $28,090 in mostly
court-ordered gifts. During the same period, the city of Madison's
police-run drug educator program has gotten court-ordered payments totaling

Fines and cost costs for these cases commonly run in the hundreds of
dollars. And, of course, there are attorneys fees, which for a
run-of-the-mill possession case can easily top $1,000. "Most lawyers would
tell you," says Frank, "that if you repeal marijuana laws you'd take a lot
of business away from us."

Further, in drug cases that lead to criminal convictions, state law
mandates a six-month revocation of the person's driver's license. This
riles attorney Giesen, because the penalty often bears no relation to the
offense: "Somebody can be sitting in their living room, smoking a joint"
and end up losing driving privileges.

How much trouble can a person get into for pot possession? Consider the
case of D. Smith, a middle-aged Madison man with a steady job and kids in
college. Frank, who represented Smith, calls him "a pretty upstanding
citizen in every other way"--other, that is, than his use of pot.

On July 28, 1998, Smith was pulled over by police for a traffic violation.
Officer Ann Lehner noticed a plastic baggie in the glove box when Smith
reached in for his driver license. She asked if contained "weed" and Smith
admitted that it did. He also volunteered that he had just cashed his
paycheck and purchased an ounce from a man at Brittingham Park, giving a
"pinch" of pot to another man who helped him make the connection. In all,
police confiscated 30.8 grams of pot, just over an ounce. Smith was charged
with possession of THC, which in his case was a felony because he had a
previous drug conviction--dating way back to 1974. He was also charged with
manufacture/delivery of THC--for which he faced up to three additional
three years in prison (doubled by the enhancer to six years)--for the pinch
of pot he gave the man who helped him score. Frank says this loose
interpretation of delivery is typical: "If you pass a joint at a party,
it's delivery."

After four court appearances (one of which was delayed because "defendant
recovering from heart surgery"), Smith was convicted of felony THC
possession; the delivery charge was dismissed. He lost his drivers license
for six months and was fined $500 plus court costs for a total of
$1,026.50. A year later, he still owes hundreds of dollars on this fine, on
a payment plan. (A filing from this May lists him as "unemployed.) And the
$420 in cash that Smith says represented the remainder of his newly cashed
paycheck? That was forfeited to the drug cops.


DA Nicks, in a letter to Isthmus, remarks that "during my tenure, there has
been a substantial increase in the number of referrals to our drug
treatment court, most of which are marijuana cases, and a general emphasis
on diverting first-time marijuana offenders."

Drug court consists of two programs, a treatment track and an education
track. People charged with first-time pot possession are comminly routed to
the education track. This means they must attend four two-hour classes at
PICADA, and for a period of time (generally six months to a year) submit
their urine for drug testing and show up regularly in Judge Stuart
Schwartz's court. Successful complete results in a dismissal of the
criminal charge. Defense attorneys agree that referrals to drug court are
on the rise, and many think it is a good idea. "Dane County tries to get at
the root of the problem, so we don't see these people again," says Watson
of the State Public Defender's office.

But others question whether the ordinary person busted for a first-time
marijuana offense is genuinely in need of intensive intervention. In most
of these cases, says Pines, "the only thing that distinguishes the people
who are prosecuted from the thousands of other people doing the same thing,
is bad luck."

Again, for Pines, the bottom-line issue is hypocrisy. He says members of
his generation are apparently suffering from "a collective amnesia" that
allow them to prosecute others for "the very same conduct that they engaged

Worse, he says, this generation "has allowed public policy to be
determined--and an ideology of marijuana put forward--that they themselves
know is not true." And so prosecutors and judges who once smoked pot
without negative consequence now pat themselves on the back for their mercy
when they let first-time offenders off with months of mandatory court
appearances and drug testing. Smith, the former assistant DA, refused to
say whether or not she personally had ever smoked marijuana: "I'm rather
offended by that question." Judge Foust had this to say: "Is that a stupid
question or what? I went to college here in the 1970s!"

Foust notes that the movement to decriminalize pot possession in the 1970s
"was in part a reaction to sentiment about how much [of the system's
resources] should be invested" in these prosecutions. The implication is
that, now that marijuana possession is once again routinely treated as a
criminal offense, the public can express its discomfort and demand a
different approach.

Part of what's needed, stresses attorney Pines, is for people in the system
to be honest: They smoked pot themselves, it didn't ruin their lives, and
they didn't become criminals or addicts. He compares it to when women began
coming forward to say they'd had abortions, paving the way for legalization.

"At some point," he says, "people who are in their late 40s and early 50s
who used marijuana when they were in college have to stand up and say,
'These drug enforcement policies are foolish.'"

Next week: A pot grower gets busted.

Sidebar: A case in point

How much time and effort does the criminal-justice system spend going after
people who smoke pot? A case in point: The State of Wisconsin vs. Mark D.

On August 28, 1998, UW-Madison campus cops spotted what appeared to be a
pot pipe underneath a pack of cigarettes on the console area of Dahl's
parked truck. In a five-page, single-spaced report on the incident, Officer
Robert Hale stated that he and his partner were "conducting plain view
searches of vehicles" in the UW parking lot in the 600 block of West
Johnson Street. A third officer, Stewart Ballweg, staked out the vehicle
for three and a half hours until Dahl and a friend returned. Two more
officers were summoned when Ballweg pulled the vehicle over on grounds that
it had paraphernalia in plain view. They searched the truck and found a
total of three pipes and a small amount of "what appeared to be marijuana"
in the cellophane wrapper of a pack of cigarettes. It was later deemed to
total 2/10 of one gram, or 1/140th of an ounce, about $1 worth. Prosecutor
Ken Farmer opted against charging Dahl, then 23, with possession of THC,
which would have been a felony since he has a prior drug conviction, from
January 1995. But Dahl was charged with possession of drug paraphernalia,
and faces double penalties because of his prior.

Last December, Dahl's attorney, Rick Meier, filed a motion seeking to
exclude the pipes on grounds that the officers did not have probable cause
to stop the vehicle. On May 26, 1999, a hearing was held before Circuit
Court Judge Robert DeChambeau. Officer Hale, according to the 65-page
transcript of this proceeding, testified that he observed "green vegetative
material" in the bowl of the pipe. This contradicted Hale's report, in
which he stated that the substance was brown. Upon remembering that it was
brown after all, he insisted it was "not similar" in appearance to tobacco.

Later in the proceeding, Officer Ballweg testified that he smelled
marijuana as he approached Dahl's vehicle after pulling it over--a fact he
neglected to mention in his detailed, three-page police report. Meier
questioned the "credibility" of this testimony, but Judge DeChambeau cited
Ballweg's belated olfactory recall in dismissing the motion to suppress.

Meier also called his law associate, Morris Berman, to the stand to testify
that he had earlier that day bought two completely legal pipes similar to
those confiscated by police from a store on State Street. These two pipes
are now stuffed into the bulging case file in the office of Judge
DeChambeau, who rejected this line of argument on grounds that the pipes
were not like the ones his grandfather used to smoke Prince Albert. The
case is set for trial on Aug. 23, almost a full year after the incident.

"It's bullshit," fumes Meier, who vows to take the case to trial unless the
charges are dismissed. "If this was Mayberry R.F.D., maybe this would be
the big crime. But there's rape, robbery, murder, domestic abuse--you name
it--going on in Madison, and you've got University of Wisconsin police
officers looking for trivial crimes in parking lots.

"Go ask some female co-ed whether the police should be staking out the
lakeshore path [by Memorial Union] for potential rapists, or staking out
the UW parking lot to bust people for having a pot pipe. Which is more
important?" --B.L.

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MAP posted-by: Keith Brilhart