Pubdate: 04 Sep 1999
Source: Capital Times, The  (WI)
Copyright: 1999 The Capital Times
Author: Jason Shepard


When Diane Nicks first took over as Dane County's top prosecutor, she
didn't understand why the District Attorney's Office was so inundated with
cases involving misdemeanor marijuana possession.

"It struck me that there were such large numbers," Nicks said in an
extensive interview with The Capital Times about her office's prosecutions
of marijuana cases. "I asked people around here, `Do we have to prosecute
all these cases?' "

Before her November 1998 election as district attorney, Nicks, who was then
an appointee, got together with her drug prosecutors to talk about ways to
cut back on the number of prosecutions.

Her motivation, she said, was to put into perspective the huge caseload
that she and her 34 assistant attorneys deal with on a daily basis. On a
scale of priority, small drug offenses did not merit being anywhere close
to the top, she said.

"People in the drug unit in particular came back to me and said we could
try to establish some standards that will help us weed out the casual user,
the experimental user, the person who otherwise is not in trouble with the
law ... , who I think we shouldn't bring the full criminal process to bear
on," Nicks said.

Those people, Nicks said, should be issued a citation and pay a fine rather
than face criminal prosecutions. And she says her office needs to be more
pro-active in cutting back on its prosecutions, developing and following
consistent charging guidelines. Help from law enforcement agencies in
reducing the number of cases referred to the District Attorney's Office is
also critical, she said.

But while Nicks doesn't hesitate to say she's concerned about the large
numbers of cases -- 723 charges filed for misdemeanor marijuana possession
between Jan. 1, 1998, and July 31, 1999 -- she also stressed that she
doesn't want to minimize what she sees as the dangers of marijuana use.

Now, Nicks is struggling with the obvious need to cut her office's
prosecutions while not wanting to send a message that smoking dope is OK.

"I want to deter drug use. I have a 17-year-old. I don't want to go back to
$5 citations," she said, referring to the city's symbolic $5 citation for
pot smokers in the 1970s.

"I want to send a message that drug use does not help people. Drug use is
dangerous," she said.

She sees cases regularly that link the illegal drug trade with violence,
and points to cases such as the Jonathan Daniel murder case, in which a
promising UW student was shot to death in 1996 during a marijuana robbery.

"I see the consequences of those things now probably more so than other
people," Nicks said.

She said she often sees cases involving young people mixed up with drugs,
gangs and guns.

"People do get killed, people do carry guns, there's lots of money in it,"
she said.

The spectrum of marijuana users includes both those with strong ties to
other dangerous activities, and those who are otherwise law-abiding citizens.

"I'm not going to say that if you inhale marijuana, any more than if you
swallow a taste of beer, you're going to become addicted. But I am going to
say that it's a drug. And that people, particularly people who like the
feeling of getting high or getting drunk, have a lot of problems in life.

"I don't want to have a society where we're saying it's fine to get high,
it's fine to get drunk. It's a fine and easy out for a world where we all
face challenges and difficulties, and I want the message that I'm sending
to be one of facing those challenges and difficulties without being high."

She also makes a distinction between pot and alcohol.

"I know people compare them, but I think the difference is you can have a
glass of wine -- many people do drink lightly or moderately -- and they're
not drunk. But I don't know that anyone uses marijuana and doesn't get
high," Nicks said.

She still is concerned with chronic pot smokers whose lives are disordered
by their drug use. And she is worried about people who get high and drive
- -- something that is more difficult to detect than drunken driving. And she
wants to help neighborhoods that have open-air drug dealing and pot smoking
in apartment hallways.

To that end, Nicks said the vast majority of prosecutions involve the more
extreme users. She contends that, by and large, the marijuana cases that
come to the District Attorney's Office involve drug dealing, large amounts
of pot, the discovery of pot in connection with another criminal
investigation, or traffic stops.

"If people have the notion that these are people using in their private
homes and somehow are detected by police ... , (those cases) just don't
come in," Nicks said.

"Much of the marijuana is discovered in the course of an arrest," she said,
adding later, "or in the context of other crimes or perhaps traffic cases."

A review by The Capital Times of a sample of the 723 cases filed in a
19-month period under Nicks' tenure supports her statements. (See
accompanying story.) Inhale: Nicks won't say whether she herself has
inhaled or not.

"I was a student here in the '60s," Nicks said with a red face when asked
point-blank if she ever smoked marijuana.

Is that a yes or a no?

"That's an answer that I'll stick with," she said.

She resented the suggestion that she and others of her generation have
"collective amnesia" and are hypocrites for prosecuting the same behavior
they once indulged in themselves. Prominent defense attorney Lester Pines
made that accusation in a series of in-depth articles in the weekly Isthmus

In the Isthmus series, several people said many pot smokers of the '60s and
'70s turned out to be productive, normal members of society -- including
many of those responsible for harsh marijuana policies today.

"In the '60s, I didn't think it had any addictive potential. I didn't think
it was dangerous in any way," Nicks said.

"When you are young, you are invulnerable and things are not dangerous. ...
I don't think it's hypocritical to mature and to take in more information."

And, she said, the marijuana of today is much more potent than when Nicks
was a 20-something University of Wisconsin student.

"It's not ditch weed," she said. "It's a much higher grade of marijuana."

Nicks said she welcomes the public scrutiny of how her office deals with
marijuana cases.

"One of the questions I've had for myself is, where is the community at?"

She's hoping to strike a balance with her office's new guidelines.

Those guidelines, drafted by assistant district attorneys Ami Larson, Mary
Ellen Karst and Ken Farmer, proposed issuing criminal charges for the

* The quantity is greater than 7 grams.

* The person is a target of investigation for more serious drug activity.

* The person has a drug arrest in the past 10 years.

* The marijuana was discovered in the course of an
operating-while-intoxicated arrest or other criminal arrest.

* The person is uncooperative with police.

* The person qualifies as a criminal repeater.

"We've tried to separate out factors that are meaningful," Nicks said,
adding that these are not going to be followed rigidly in all cases.

"As soon as you try to line things up too tightly, you find that you
haven't captured something." 

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