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