Melendez-Diaz: Another budgetary reason for Virginia to make possession of marijuana a civil offense

Baltimore Politics Arlington Law and Politics Examiner

August 14, 6:01 PMArlington Law and Politics ExaminerChristopher Leibig

The recent United States Supreme Court case of Melendez-Diaz v. Massachusetts[1] and its effect on the administration of criminal justice, has been discussed in the press nationwide. Some hail the case as a triumph for the Constitution. Its strict interpretation of the Sixth Amendment's Confrontation Clause does enhance an important right. But for non-lawyers assessing the real-life ramifications of this decision, the critical piece to understand is that the government now has to spend substantially more money prosecuting routine criminal cases like D.W.I. and possession of marijuana. This is because the Sixth Amendment now requires lab analysts who conduct forensic examinations to appear in Court to testify to their conclusions instead of just submitting reports. Before Melendez-Diaz, the prosecution of almost every DWI and Possession of Marijuana case in the United States included a prosecutor handing the court a sheet of paper saying (1) a defendant’s blood alcohol level in the case of DWI, or (2) that alleged marijuana was proven so by a lab in the case of marijuana. Now, the person who actually conducted the test must take the witness stand and be subject cross examination. The result will often be the same.[2] The cost will not. The prosecution of driving while intoxicated cases will always be a critical state priority. But the strained argument that our resources should be similarly employed to punish possession of marijuana is substantially weakened considering the added cost of prosecuting these cases after Melendez-Diaz.

Next Wednesday the Virginia General Assembly meets to address the application of Melendez-Diaz in Virginia Courts. The legislators will change Virginia’s law to make compliance with the Sixth Amendment less burdensome. What they cannot do is legislate the Commonwealth’s way out of complying with the Sixth Amendment. Therefore, Virginia’s lab technicians are going to have to appear at almost every marijuana case that goes to trial. No one can change this new fact of life. What the legislators can do is dodge a large part of the problem by modernizing Virginia’s marijuana law. They merely need to reduce possession of adult possession of marijuana for personal use from a jail-able crime to a pre-payable civil ticket.[3] If possession of marijuana is not a crime, the Sixth Amendment does not apply, and the civil fine can be imposed with hardly any expense to the Commonwealth.[4] Such a plan would render adult possession of marijuana for personal use, like routine traffic tickets, a profitable endeavor for the Commonwealth.

This would not be the first time the General Assembly sought to reduce mandatory court appearance cases to save money. It asked the Supreme Court in 1999 for recommendations to reduce the number of offenses requiring a personal appearance in court. As expressed in the subsequent 2000 report, the Supreme Court noted that “the entire philosophy of pre-payable offenses is predicated on maximizing efficiency and minimizing inconvenience.” The characteristics of a pre-payable offense are: 1) pretrial waiver of appearance, 2) a plea of guilty, and 3) a fine. The General Assembly cannot designate an offense as pre-payable if a) subsequent offenses have different penalties or b) additional sanctions require additional judicial attention. Thus in order to make marijuana possession a pre-payable offense the General Assembly would have to eliminate both the potential jail term and the more severe penalty for a second or subsequent offense. This could be accomplished by making possession of marijuana a civil offense.[5] (The current mandatory six-month driver’s license suspension would also cease to apply).

Possession of marijuana cases clutter Virginia’s court dockets more than any other petty offense. According to “Crime in Virginia”, the official annual statistical report on arrests in Virginia, there were 26,284 narcotic drug arrests in 2003. Marijuana ranked highest in total volume of drug arrests at 56 percent. [6]

The main argument against such a proposal, that punishing marijuana users is an important state function, has been losing ground throughout the United States. Some states have already de-criminalized marijuana, and California presently seeks to legalize it outright. There is no evidence that decriminalizing marijuana increases marijuana use. Some evidence suggests the opposite. [8] The Connecticut Law Review Commission found that in states which lowered marijuana penalties, marijuana use dropped on the whole as compared to states which did not change their laws.[9]

Reasonable minds may differ about whether adult marijuana use is an evil against which the criminal justice system should direct any energy at all, but most people likely agree marijuana prosecutions should not divert substantial resources, or the time of forensic scientists, from more serious cases. In a well known article supporting criminal penalties for marijuana users, the Office of National Drug Control Policy repeatedly stresses the fact that most lengthy drug sentences are for drug traffickers and not mere users, and that casual marijuana users have never been of major concern to the criminal justice system.[10] If the Office of National Drug Control Policy is correct, replacing jail time with civil penalties for adult possession should not effect much at all.

From a legal perspective, the Virginia legislators have a tough job ahead to prevent petty cases from clogging court dockets and overwhelming the Department of Forensic Science.[11] They should eliminate a huge portion of the problem in one bold move by decriminalizing marijuana possession. A defendant who insists on his or her day in Court can request lab testing, but if the ticket carries no jail time, no probation, no license suspension, and no criminal record, the substantial majority of those cited will likely just pay the fine.[12]

The General Assembly has a real opportunity to address the budget, Melendez-Diaz, and drug reform with one simple change, and without encouraging or even approving of marijuana use.

Just a thought - at five hundred dollars a ticket, how much could this mean for Virginia’s roads. Or colleges. And that does not even count the savings. If so few people go to jail for marijuana possession anyway, what, in the end, is the big deal?

[1] See full opinion at http://www.law.cornell.edu/supct/html/07-591.ZS.html.

[2] In many DWI cases, the person conducting the breath test is the police officer who is already a witness at trial. However, Melendez-Diaz likely requires additional live witnesses, like the persons who calibrate the breath testing machine for accuracy, to be live witnesses. In drug cases, the lab technician and the police officer are never the same person, and, pursuant to the ruling, the lab technician must take time out from his or forensic work to be at court for any case that goes to trial.

[3] “In the absence of further guidance from the Supreme Court, a special session is the most effective way to ensure compliance with Melendez-Diaz and ensure that pending cases in Virginia are handled in an orderly fashion,” said Governor Kaine. See http\www.rootswire.org\Kaine-Calls-Special-Session-Address-Melendez-Diaz.

[4] The Virginia Code provides for trial rights beyond those required by the Sixth Amendment, like the right to a jury trial for routine non-jailable traffic tickets. That, however, does not mean the Sixth Amendment right to a jury trial applies to the traffic tickets. The Sixth Amendment would not prevent a civil fine policy for marijuana if the offense did not bear standard indicators of what renders an offense "criminal".

[5] Office of the Executive Secretary, Supreme Court of Virginia. A Study of Required Personal Court Appearances for Minor Nontraffic Offenses. House Document No. 34. Commonwealth of Virginia: Richmond. 2000. (Cited in http://norml.org/pdf_files/state_penalties/VA_NORML_Maximum_Penalty.pdf).

[6] Uniform Crime Reporting Program, Virginia State Police, “Crime in Virginia” 2004.

[7] Some states—including Colorado, Maine, Nebraska, New York, and Ohio—have gone so far as to downgrade simple possession of marijuana from a misdemeanor to a civil offense, equating it to a traffic violation. This is not to say that penalties for the simple possession of marijuana have been removed. Indeed, the drug is still considered illegal in all 52 jurisdictions, including those where various “medical marijuana” defenses apply. And in 19 jurisdictions, judges have the discretion of imposing sentences of up to a year in custody for the lowest marijuana possession offenses. http://www.whitehousedrugpolicy.gov/publications/whos_in_prison_for_marij/whos_in_prison_for_marij.pdf

[8] “In sum, there is little evidence that decriminalization of marijuana use necessarily leads to a substantial increase in marijuana use.” National Academy of Sciences, Institute of Medicine(IOM). 1999. Marijuana and Medicine: Assessing the Science Base. National Academy Press:Washington, D.C., 102;

[9] Connecticut Law Review Commission. 1997. Drug Policy in Connecticut and Strategy Options: Report to the Judiciary Committee of the ConnecticutGeneral Assembly. State Capitol: Hartford.

[10] The report states, “In this report, we have endeavored to set the record straight regarding one of the most pervasive myths about marijuana. The truth, supported overwhelmingly by the best data available, is that our prisons are not overflowing with people arrested just for smoking pot. On the contrary, we are seeking—through new treatment oriented approaches such as drug courts—to divert those whose involvement with drugs is limited to their own use, while actively working to disrupt drug trafficking organizations.”http://www.whitehousedrugpolicy.gov/publications/whos_in_prison_for_marij/whos_in_prison_for_marij.pdf

[11] According to the Washington Post, lab analysts in Virginia have a backlog of evidence to test without being obligated to travel to court, and requiring their live testimony will create even greater delays. http://www.washingtonpost.com/wpdyn/content/article/2009/07/22/AR2009072203533.html .

[12] Civil libertarians would likely complain about such a proposal on the grounds that (1) it operates to the detriment of less wealthy defendants, and (2) it makes it easier for the Government to collect fines for possession of marijuana. As to the first, the entire justice system already operates to the detriment of the less wealthy. Here at least, jail time is not on the line. As to the second, defendants wishing to avoid the civil penalty can always contest the evidence and demand testing.

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