Jeffrey Schwartz: Why Prosecute What May Soon Be Legal? – April 21, 2010

Tuesday, April 27, 2010

On November 2, 2010, the Humboldt County criminal justice system as it relates to marijuana prosecution may change drastically. The Regulate, Control and Tax Cannabis Act of 2010 initiative qualified last month for the ballot. Early polls suggest it will pass. The final outcome is uncertain. What is certain is the immense waste of time, money and resources in continuing to prosecute marijuana cases when before the year is out there is a very good chance that the possession, cultivation, distribution and sales of marijuana will be legal.

Without a moratorium the criminal justice system will remain severely clogged with marijuana matters that consume by far the largest number of cases jamming the justice system for precious court time on the morning calendars. For example on Monday mornings when the court calls the weekly trial calendar there have been virtually no courtrooms available for any trial unless a defendant asserts his or her right to a speedy trial. If you have a civil case that needs to go to trial, forget about it.

A moratorium on the prosecution of marijuana cases until we find out if those cases will even survive the new law will open the courthouse roads to justice for more serious cases including the prosecution of methamphetamine sales, domestic violence, sexual assault and child abuse.

We have nothing to lose by imposing a moratorium. The genesis of a marijuana case from arrest to the actual filing in court is almost always three to six months, and often longer. That is just to get the case started. If there is no urgency in getting a case to court from the arrest to the first court appearance, what would be the urgency to continue to prosecute the cases while the law may be overturned in November? An April 15th marijuana arrest would not show up in court for first time until August, September or October or later.

There are other benefits as well. Some estimates say it costs the county $137 a day or more to house an inmate, not counting the enormous costs if an inmate gets sick and is treated at an outside medical facility. Should we taxpayers front that money when defendants’ sentences may very well be overturned in November?

And, for those of us left who care about justice for the accused, should a person be punished with a pending marijuana case that may very well be a medical marijuana case hung up in the labyrinth of vague laws, when before the year is out, his or her case may be dismissed because the conduct becomes legal or not criminalized? Any case not final at the time a new law becomes effective gets the benefit of the new law. That means a person could be tried before a jury over a three- or four-week period consuming enormous court time and money, sentenced and jailed and then finds out the news that his or her case will be dismissed.

Placing a hold on marijuana cases until November has the upside of freeing the courts and the prosecutors to attend to more serious crimes, (which should be the policy anyway), saving the county enormous sums of money and not punishing a person on the eve of a law that may make his or her conduct not subject to criminal laws.

Stop by any morning at the Humboldt County Courthouse and imagine half the number of people. Envision the overcrowding dissipate before your eyes. Then watch the court and prosecutors with limited resources concentrate on child molesters, rapists and spousal batterers without the distraction of massive numbers of marijuana cases.

If the initiative does not pass in November and we have a backlog of marijuana cases, maybe those in power will start rethinking their priorities on which kinds of cases we should spend our limited taxpayer money.

Jeffrey Schwartz is an Arcata criminal defense lawyer and former prosecutor practicing criminal defense law in Humboldt and Mendocino Counties. You can reach him at


6 Responses to “Jeffrey Schwartz: Why Prosecute What May Soon Be Legal? – April 21, 2010”

  1. Andrew Isaac

    Is it possible that one half the cases filed by the District Attorney are marijuana prosecutions? Would Mr. Schwartz be kind enough to
    provide us the statistical basis for this allegation? And is it possible that because resources are being devoted to marijuana cases the District Attorney’s ability to prosecute child molestation, rape and domestic violence is impaired? When and how did that occur? Again, perhaps Mr. Schwartz could tell us what basis he has for this assertion.
    I would be astonished if Mr. Schwartz could point to one single case
    of rape, child molestation, domestic violence or any other violent crime which the District Attorney’s office, or any law enforcement agency in Humboldt County, did not fully investigate and prosecute because resources were siphoned off by marijuana cases. The idea is pure rubbish.
    None of which should deter anyone from voting in support of legalization which many persons who work in law enforcement support in their private capacities of citizen and voter.

  2. Although there are millions spent on the prosecution of marijuana cases, I don’t think that the government is waisting money to enforce laws that were voted in, in the first place and that time and money once used to prosecute the marijuana laws is suddenly going to be freed up once legalized. THAT is a pipe dream.
    As a user (illegally) in Canada, I have seen what relaxed marijuana laws do (eg. British Columbia), since possession of small amounts is ‘legal’ in a sense, Police there have no more resources, time or money to prosecute other things, so please, let’s not blame the law for thier inadaquacies when it is the criminals that dictate the resources. If anything, take the money from legalizing the marijuana and apply it directly to the health care bill that is going to come from the millions more smokers you are going to produce.

    ….just sayin’…..(puff.)

  3. No Name

    i agree with andrew its not the marijuana cases clogging things up its the district attorneys office they make the choices&legalization needs to be further thought through this could cause the northern california economy to crash no ones thinking of the growers just the users& their h*ll bent on legalization just saying look at both sides of the table..b4 its to late

  4. Daniel Wasserman

    I would suggest that Mr Schwartz is actually campaigning for the benefit of improving his number of marijuana crime related clients and that his spiel is merely a calculated attempt to win over this portion of the demographic.
    Lest we forget, Mr Schwartz was once a member of the Humboldt County District Attorney’s Office attorney staff. He was responsible for prosecuting multiple marijuana related cases. I will grant that Mr. Schwartz was not very good at his job. It was this poor performance that caused Mr. Schwartz to be given the moniker, “Hugo Freely” by better, more determined deputy district attorney’s, members of local law enforcement, as well as a rather frustrated F.B.I. agent that has since left the area. I find it hard to believe that anyone is able to convert from prosecuting to defending persons charged with marijuana related crimes over some moral conversion. I believe it is the love of the Benjamins not freedom that inspires this advocacy by Mr. Schwartz.

  5. Benjamin Okin

    What would be legalized under the Act is no where near the numbers and quantities being prosecuted by the DA’s office. Those cases still have to be worked out in the mess 215 has made. The total and complete legalization is the only thing that will unclog the courts. This new legislation will not.

  6. Hell to the yeehaa!! thank you.


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