America: What's more harmful, pot use or incarceration?

A Seattle resident takes marijuana from a plastic bag shortly after a law legalizing the recreational use of marijuana took effect on Dec. 6, 2012 in Seattle.
Stephen Brashear

NEW YORK — Danielle Bradford was raised in state custody because of her parent’s abuse and drug dependencies.

When she was 18 she moved out, found work at a local waffle shop and got her first apartment in Nashville, Tenn. Her estranged father helped by co-signing on the lease.

One evening she was at home with her neighbors when three police officers knocked on the door. They said they had received a report that there was a portable meth lab on her property. “I allowed them to look, and obviously they did not find anything,” she said. What the police did find was that her neighbor had some marijuana and a bowl that she had prepared for him.

Two officers cornered her inside her room as three others continued the search outside. Bradford was in tears, and a volley of questions followed.

"Where's the drugs?"

"I know you know where the acid and ecstasy are!"

"Who makes the meth around here?" they demanded.

“At this point I was crying and very scared. I had been working almost 60 hours a week and I was trying to save up money to go to school. I had never done anything ... besides smoke pot,” she said.

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The officer found a few grams of marijuana in a box beside her bed. She said she was using it for pain management, along with Advil. “They both laughed in my face and proceeded to tell me I was under arrest. At this point I was in a full blown panic attack,” she said. When she went to her living room her neighbor was being arrested for simple possession and possession of paraphernalia.

“The officers were looking through my pile of High Times magazine, I had a collection ranging from the 1960s to 2000s. They were mocking me, my home and my lifestyle. I was very angry,” said Bradford.

That night four of her neighbors were arrested for possession. Three days later she received a letter in the mail from her landlord informing her that there was a zero tolerance clause in her lease, and because of the paraphernalia and simple possession charge she was subject to a three-day eviction notice. “So I was thrown out that day with no notice,” said Bradford.

She later found out that employees at the apartment office had called the police, lying about the meth lab because they objected to marijuana use. Next, her father found out about the reason for her eviction. “We already had an extremely strained relationship, because of the physical and mental abuse I had taken, but I was still willing to try to have some form of a relationship. But he called me a ‘piece of shit druggie!’ So I lost my home, job and father again,” she said.

Draconian peccadilloes

Bradford is one of the millions of Americans who have been apprehended for marijuana related offenses, a number that stands at 12 million arrests since the year 2000. Nearly half of all drug-related arrests in the United States (approximately 52 percent) are connected to marijuana.

In 2011, there were more than 750,000 arrests for possession of marijuana in the United States, one every 42 seconds. The overwhelming majority, almost 90 percent, were for simple possession and not for trafficking or sale, according to the FBI Uniform Crime Report in October 2012.

Numbers like these are staggering, but consider this: More than 30 million Americans — one-tenth of the population — used marijuana in the past year. It is the most commonly used illicit drug, with 42 percent of American adults reporting that they have used it at some time, according to the National Institute on Drug Abuse. Nearly half of all 12th graders in American schools have used the drug at least once.

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Even less well understood by the general public is that these arrests can have collateral consequences much larger than the time served. Sanctions triggered by marijuana convictions can affect nearly every sphere of a person’s life. Professional licenses can be suspended and one can face major hurdles in getting employment or promotion. Many students lose financial aid and cannot continue their education. There can be bars on adoption, and even on basic citizens’ rights to things such as voting and jury service.

For people who depend upon public assistance the consequences can be more detrimental. A marijuana conviction can trigger a block on receiving food stamps and restrict access to public housing. In some states, these sanctions can drag on for life. The contact with the criminal justice system itself can stigmatize a person, change the course of their lives and ruin relationships, a cost that is hard to measure.

“We are criminalizing a significant section of our society,” said Mason Tvert, who works with the Marijuana Policy Project in Denver, Colo. “Marijuana use should be addressed by treatment and education, not law enforcement,” he added. The organization works to build public support against punitive marijuana policies and also to change state laws, aiming to liberalize both medical and non-medical use of marijuana.

Tvert maintained that marijuana prohibition was carried out at great cost to taxpayers, with billions of dollars being spent on enforcement and campaigns to vilify marijuana use, versus focusing on more serious crimes.

Current legislation varies widely across states. Beginning with California’s legalization of medical marijuana in 1996, a total of 18 states and the District of Columbia allowed prescription use. Now with Colorado and Washington legalizing personal possession and use of small amounts of marijuana even recreationally, the debate to legalize the drug in the country has picked up.

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The impact of current policies starts at a young age and students who have drug convictions are denied loans, grants and even work-study jobs. Currently in 28 states, a student who is convicted of possessing any amount of marijuana will be denied federal financial aid for a year, and may also be denied state educational aid. More than 180,000 college students have been denied or delayed federal financial aid as a result of a drug conviction, according to a report by the Coalition for Higher Education Act Reform published in 2006.

“At the student level, nothing happens if you get a DWI [Driving While Intoxicated] for alcohol in terms of federal funding, but if you are found with marijuana, you cannot get the grant money to keep going,” said David Holland, executive and legal director of the National Organization for the Reform of Marijuana Laws (NORML) in New York.


Nathan Foutch of Peru, Ind., was an ardent Lance Armstrong fan and a cyclist. As a high school senior in 1995, he was set to get a scholarship for college, his ticket out of the small town. One night in June of 1995 he was driving and pulled over to take a nap near an old church. Later, a sheriff’s deputy woke him and asked to search his car. Foutch granted permission and after half an hour of searching the officer started going through the empty cigarette packs on his back seat, in one of which he found a small amount of marijuana.

He was arrested for possession, and ended up spending 30 days in jail, sharing a 9 by 12 foot jail cell with three other inmates. His parents eventually bailed him out, but he lost his scholarship and could not get into college. He ended up doing a few small jobs instead and could never get back on the track he had set for himself. “Things would’ve been different if this hadn’t happened when I was younger,” he said.

Furthermore, a misdemeanor conviction stays on one’s record, available to the public for three years before it can be expunged, which can have repercussions for both current and future employment. 

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In many states, any marijuana conviction, misdemeanor or felony, may be considered by private or public employers as grounds for dismissal or refusal to hire, regardless of how the person actually performs. In Alabama for example, any felony marijuana conviction results in a lifetime bar from any government employment. “Employers look at marijuana use as a character flaw, rather than as youthful indiscretion,” said Holland, adding that the widespread attitude to the substance was such that cannabis users were considered by many to be the scourge of society.

Allen Roberts of Charlotte, N.C., then 17 years old, was at a park with a group of neighborhood friends, for a summer festival. One police officer approached the group and asked if they had been in the playground, where someone had been seen smoking weed. Roberts asserted that they were being antagonized, not realizing that some members of the group had broken off and could have been smoking. “We are not that stupid to do something like that in the park, especially near the kids," Roberts retorted. Since he was the only one to speak up, the officer singled him out. He was patted down and searched. The officer found marijuana and Roberts was convicted for possession.

Despite the conviction, he worked on his dream of getting into the military and got a waiver to enroll. He says he scored 97/100 in the Naval entrance examination and was looking forward to getting into the specialty of his choice, the Navy Electronics Program. However he got another charge for possession, and was thrown out of the program. Ever since that rejection, he worked multiple small jobs. Now 31, Roberts is unemployed. “I have developed a mindset that I will never be able to do right or I will never be accepted into society. I honestly feel like an outcast,” he said. “I can never get the opportunities I seek because I have a criminal history filled with simple possession of marijuana convictions.”

A different approach

In spite of strict enforcement of prohibition, use of marijuana has been growing over the years. More than 15 million Americans admit to having used it in the past month. In fact marijuana is the most widely used illegal drug in the world. The United Nations estimates that 160 million people use cannabis every year.

More tolerant policies for marijuana use are common in Europe, from Russia to Italy to Belgium to Portugal, where anyone caught with small amounts of illegal drugs are not charged with a crime, but reported to local commissions to ensure that users seek treatment. Depenalization goes a step further than this decriminalization, particularly the Dutch policy of cannabis normalization, for which there is an official “non-enforcement” policy.

Marijuana was once widely accepted in the United States, but the Marijuana Tax Act of 1937 made its use as an intoxicant illegal. At that time its public image was associated with use within the predominantly African-American jazz culture and by Mexican immigrants, and movies like “Reefer Madness” further vilified the drug for the white majority.

Even as policies became less friendly toward marijuana use, its actual use kept growing. It became a part of the 1950s Beat culture and spread more widely on college campuses over the next two decades, when it was embraced by the hippie movement in the 1960s. By 1971, college student use of marijuana had climbed to 51 percent.

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Under the US President Richard Nixon, the Controlled Substances Act of 1970 classified marijuana along with heroin and LSD as a Schedule I drug, stating that marijuana had a high abuse potential and no accepted medical use. A commission constituted by Nixon under Pennsylvania Gov. Raymond Shafer concluded that: “Neither the marijuana user or the drug itself can be said to constitute a danger to public safety. Therefore the commission recommends … possession of marijuana for personal use no longer be an offense.”

Despite the commission’s recognition that the drug was relatively harmless, it never gained acceptance by the administration. The anti-marijuana rhetoric during the era of US President Ronald Reagan effectively stopped any chances of a liberalized policy. People across the United States were arrested for possession, growing and trafficking marijuana, pushing the total number of arrests since 1937 to 23 million.

Advocates for decriminalization point out that smoking marijuana is substantially less toxic for the body than alcohol. The US Centers for Disease Control and Prevention (CDC) reports that more than 37,000 annual US deaths are attributed to alcohol use alone. Health-related costs for alcohol consumers are eight times greater than those for marijuana consumers. In comparison marijuana use is not associated with overdose deaths or with an increased risk of cancer.

In comparison to the 750,000 marijuana possession arrests, in 2010 there were 2.6 million arrests related to alcohol use, including public drunkenness, sales to minors, driving under the influence and other violations of liquor laws. 

Studies have repeatedly shown that alcohol, unlike marijuana, contributes to the likelihood of aggressive and violent behavior. The National Institute on Alcohol Abuse and Alcoholism estimates that 25-30 percent of violent crimes in the United States are linked to the use of alcohol. Nonetheless the collateral sanctions for marijuana possession are much more severe than for violation of alcohol laws.

In 38 states, a misdemeanor marijuana conviction, for personal possession of marijuana as an example, can result in a ban on adopting a child. In seven of these states, this ban can operate for life.

Justice served?

As Melissa Masner of Clinton, N.Y., got her daughters ready for school on a spring morning in April 2011, she opened the door to see the drug task force with a warrant to search her house, based on a tip that she was growing marijuana in her basement. “They tore everything up, emptied my children's toy boxes, my garbage cans, my video collections. They then took pictures to make it seem like I lived like a scumbag. They ruined my house and I could do nothing as I was handcuffed,” she said.

Her 14-year-old son, who was sick and at home, was also handcuffed and brought out of his bed. They found no plants, but they did find a small amount of marijuana. “They charged me,” she said, arguing in her defense that the marijuana and paraphernalia were always kept away from her children. After going to an outpatient rehabilitation center for over a year and a half, she finally completed her mandated rehab. “I honestly hope that no one ever has to go through what I have gone through. I was a hardworking single mom, that did nothing wrong and took care of my family,” she said.

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David Holland of NORML said that parents could lose custody of their kids just because they smoked marijuana. Hundreds of New Yorkers for example, who have been caught with small amounts of marijuana or who have simply admitted to using it, have become entangled in civil child neglect cases in recent years, according to city records. “People are being called into question whether they are good parents or not simply because they smoke marijuana, as opposed to people who openly drink alcohol and get belligerent in front of their children,” he said.

In 21 states, and the District of Columbia, a misdemeanor conviction for personal possession of marijuana can also result in a driver’s license suspension for at least six months, whether or not the person was operating a vehicle at the time of arrest. Stacey Kowalsky, 31, was a passenger in a car in Ohio when they were pulled over in October 2012.

She was given a ticket for possession of marijuana and had to go to court. She ended up losing her license for six months and paying a fine. “I wasn’t even driving!” she said, “I've never had a ticket or accident and now I lose my license. I can drive to work and that is all. No grocery shopping, no bill paying, nothing! I'm also now a drug offender.”

Racial bias

The sharp increase in the number of marijuana arrests over the last decade also brings to light a racial bias in enforcement. Certain communities have been paying a disproportionately high price for drug policies. In New York City, which has been called the marijuana arrest capital of the world, of the 50,000 arrests made in 2011, 82 percent were black and Hispanic men, according to data released by the New York governor’s office.

The New York Police Department (NYPD) arrested blacks for marijuana possession at seven times the rate of whites, and arrested Latinos at nearly four times the rate of whites, even though studies have consistently found that young whites use marijuana at a similar rate or perhaps higher than young blacks and Latinos. The racial skew raises some hard-to-answer questions, especially about bias in the implementation of the city’s “stop and frisk” policy, under which a police officer can question and frisk any person they suspect.

“That’s the consequence of how you fight the war on drugs,” according to Eduardo Padro, a New York State Supreme Court Justice talking about why African-Americans and Latinos were targeted. In an interview, he said that the drug dealers who were the perceived threat to peace, tended to operate in poorer communities. Generally these communities have many people of color, who ended up getting frisked. “I always tell people that if you want to change the complexion of this court, put the under-cover [police] in Wall Street, in college campuses and prep schools,” he added.

On a March morning in 2013, Judge Padro looked over his thin-rimmed glasses at Everardo, 16, who was brought before his bench. Everardo had been kicked out of his court-assigned program for smoking marijuana, and the options were whether to put him on probation, or worse, give him jail-time.

“Everardo, why did you smoke?” he asked, in a tone hinting at exasperation. “It was because I was stressed,” the 15-year-old replied apprehensively. After the young boy told the judge of the family problems that led to his stress and marijuana use, Padro decided not to give him probation but rather to assign him to a drug program instead. “I’m going to stick my neck out here for him and do this,” he said. He went back to the court and set another date to see Everardo again.

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“I am torn,” said Justice Padro about his views on legalizing marijuana. “I think marijuana can be addictive. On the other hand do we need to criminalize people because of it? I’ve got a problem with that also.”

For most people who get incarcerated for marijuana possession, it is their first brush with the justice system. Out of the 50,000 people arrested for marijuana in 2011, 71 percent had never been previously convicted of any crime whatsoever. Another 11 percent had prior convictions for misdemeanors. “Marijuana is driving our courts, quite literally,” said Michelle Smith, the principal law clerk working with Justice Padro.

It now costs New York City at least $75 million a year to arrest and jail people simply for possessing marijuana. A report by the Drug Policy Alliance and the Marijuana Arrest Research Project found that the NYPD spent an astonishing one million hours of police officer time making marijuana possession arrests over the last 11 years.

“Every hour they spend arresting people with marijuana the New York police is off the streets. It is a huge waste of police resources,” said David Long, a speaker for Law Enforcement Against Prohibition (LEAP), an organization made up of current and former members of law enforcement and criminal justice system who speak out about the failures of existing drug policies. LEAP believes that adult drug abuse is a health problem that should be addressed in de-addiction clinics and not a law-enforcement matter. Early in 2013 in an effort to stem the arrests in New York City, Mayor Michael Bloomberg announced that those arrested for possessing small amounts of marijuana would not have to spend a night in jail, but would be given a ticket instead and have to appear in court.

Long, after serving for nearly nine years as a special agent with the Racketeering Division of the US Department of Labor, maintained that keeping marijuana illegal meant that the source of the drug would be from countries like Mexico rather than domestic production. “Once people want something, they will get it by illegal means. All prohibition does it drive it underground,” said Long.

According to LEAP, an enormous number of people have been misguidedly incarcerated for completely non-violent “drug crimes.” In 2006 for example, the last year for which data is available, federal government figures indicated there were more than 41,000 Americans in state or federal prison on marijuana charges, some serving lengthy sentences for marijuana trafficking.

Father behind bars

In 1997 when Anthony Davila of San Antonio, Texas, came home from school, he saw the Drug Enforcement Administration (DEA) enter the house and arrest his father for trafficking.

Then 10 years old, it was the last time Anthony saw his father, who serves life without parole.

He was sentenced under the state’s three strikes law, which punishes repeat offenders more harshly, after two tractor trailers belonging to him were caught smuggling marijuana across the Mexico-US border.

“You need your dad you know, when you are growing up. I used to think it was my fault he got arrested, that I could’ve done something,” Davila said reflecting on how his childhood had been fraught with being frustrated and getting into trouble at school.

He still gets letters from his father every few months, the last being in February of 2013, which read, “Hi amigo, I am proud of you. You're doing real good at college. Keep up the good work. So you can have the know-how to run a good business.”

Another federal survey found that nearly 10 percent of former state prison inmates had been sexually victimized the last time they were incarcerated. Many more have to endure the violence and individual assaults that are a serious problem in America’s prisons.

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Andrew Bastian, 26, has had five marijuana convictions since he was 18 and has served time. “I have been in the same jail cell as someone being charged with capital murder,” he said. The last time he was in jail, a prisoner came up to him and forced him to hand over his food tray. Bastian resisted, but the inmate wrenched the tray from his hand, warning Bastian that he would be “dead on his back” if he reported him. “I go to jail for marijuana and get my life threatened. And now I am a criminal repeat offender because of prohibition,” Bastian said.

While a Gallup Poll in October 2011 reported an all-time record level of 50 percent Americans believing the use of marijuana should be made legal, major hurdles remain to liberalize drug policy. Jeffrey A. Miron, the director of undergraduate studies in the economics department at Harvard University, said that one of the major lobbies against legalization is law enforcement: local police and the DEA, for whom marijuana arrests are a major source of revenue and in the latter’s case, a powerful raison d’etre.

Marijuana arrests cost taxpayers nearly $8 billion annually on arrest and incarceration. Miron states that legalizing and taxing marijuana would add a substantial amount of revenue to the government, about $10-15 billion, coming both from savings on government expenditure on enforcement of prohibition, as well as sales tax on the legalized product. Also currently with prohibition, marijuana purchased through criminal markets is not subject to the same quality control standards that legal consumer goods are. “The people who want to use it have to face more hassles, higher prices and poor quality, just as with any commodity, whenever the government reduces the ability of people to buy something in a free market it is reducing the welfare of those people,” Miron said.

On the other side of the debate are people like Dr. Keith Humphreys, professor of psychiatry and behavioral sciences at Stanford University, and a former senior policy adviser at the White House Office of National Drug Control Policy.

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Humphreys argued legalization of marijuana would cause a public health problem. “Big industry would step in and develop a more potent product, eventually getting more people addicted to it and ending up costing the government more due to the health costs than would be earned by taxation,” he said. Humphreys conceded that marijuana was safer than alcohol or tobacco, but called for less harsh policing rather than legalization.

Marijuana is also used by over a million Americans for medical reasons, for conditions ranging from pain and glaucoma, to supplementing treatment for AIDS, cancer, multiple sclerosis and other diseases. In the late 1980s the Federal Drug Administration approved a synthetic form of THC (the active compound of cannabis) to treat severe weight loss associated with AIDS and nausea and vomiting associated with chemotherapy, but it does not approve the use of cannabis per se.

Despite the federal ban, The American Public Health Association, American Nurses Association and the state medical societies of New York, California and Rhode Island support legal access to medical marijuana. Presently even with 18 states and the District of Columbia legalizing medical use, federal laws treat all patients using medical marijuana as criminals, and these states cannot prevent the federal government from enforcing its own laws regarding medical marijuana users and providers.

Chris Williams, who opened a marijuana growing operation in Montana after the state legalized medical cannabis, was eventually arrested by federal agents despite Montana’s medical marijuana law. A jury found Williams guilty of drug trafficking. During his trial Williams was not allowed to mention the Montana law, since it was not deemed relevant to his guilt under the federal Controlled Substances Act, which recognizes no legitimate use for cannabis. Kari Boiter, a legislative analyst and legalization advocate from Seattle followed Williams’ trial closely. “Everything we are doing at the state level is completely worthless, until we get the federal government to sign a law,” she said.

In California before medical use was legalized, there were dozens of known medical marijuana patients arrested in the 1990s, which in turn is what prompted people to launch the medical marijuana initiative there. Considering a total of nearly 18 million marijuana users arrested since 1970, even if only 1 percent of those arrestees used marijuana for medical purposes, this would amount to almost 170,000 patients arrested.

Danielle Bradford of Nashville, Tenn., after her arrest and eviction eventually secured another job and moved to San Diego, Calif. While there she was seen by a doctor for severe abdominal and back pain, and was prescribed medical marijuana. When she moved back to Nashville, where medical marijuana use remains illegal, she was hospitalized for a panic attack.

Asked about the THC in her system, she explained that she was a medical marijuana patient in California. “The doctor actually scoffed at me and called it hippie medicine,'” Bradford said. “I was told that marijuana was an awful drug that would ‘ruin my life.’”

Regardless, she kept using it for relief with the other medication. A couple of years passed without incident but one day the police was called to her house for a domestic quarrel. Bradford’s house was searched and they found marijuana. “I explained that I was a medical marijuana patient but they just laughed in my face. I was arrested; I spent eight days in jail. I was so despondent I actually thought about hurting myself. I had a job, a new place and a car. I was finally achieving my goals. And now I'm in jail again,” said Bradford.

Despite a bill to allow medical marijuana, it remains illegal in Tennessee.

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Meanwhile in November 2012, Colorado and Washington became the first two states to legalize sale and possession of marijuana, even for recreational use. Adults aged 21 and older may now possess one ounce for personal use. Both states regulated it similar to alcohol, with DWI provisions similar to those against drunk driving. Colorado’s law also allows personal cultivation of up to six plants. Although both laws allow for commercial distribution, licensing systems for the manufacture and sale of marijuana are yet to be developed, and marijuana “stores” not likely to open before 2014.

Considering these developments, US President Barack Obama said that his administration would not go against users in the two states. "It does not make sense from a prioritization point of view for us to focus on recreational drug users in a state that has already said under state law that is legal," he said. “We’ve got bigger fish to fry.”

Many states are expected to follow the example of Colorado and Washington, according to the Marijuana Policy Project. These include Oregon, California, Nevada, Rhode Island, Maine, Alaska and Vermont, all of which already allow medical use.

Although New York is not on the list of states likely to change policy soon, Gov. Andrew Cuomo addressed the issue of marijuana-related arrests, stating that New York City arrested more people for marijuana than any other city.

He also admitted that the arrests showed a racial bias, targeting mainly young blacks and Latinos. "We are one New York, and as one New York we will not tolerate discrimination,” he said in his State of New York address in January 2013. “These arrests stigmatize, they criminalize, they create a permanent record. It's not fair, it's not right, it must end, and it must end now.”

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