The 1995 Marijuana Rescheduling Petition

Federalization of Marijuana Cultivation Offenses


The domestic cannabis eradication suppression program has been used by the federal government to usurp state criminal justice systems. In 1983, it was rare to make a federal case out of a marijuana cultivation incident.

"Almost all the arrests were prosecuted at the state level with the exception of eight cases, which due to the size of the cultivation or significance of violator, were prosecuted in federal court. . . Of the subjects sentenced, all but one was sentenced to time in prison, with one individual receiving an eight year prison term."(84)

By 1984, this had begun to change.

"More cases were prosecuted in the Federal Court system than reported in previous years. The increase in total prosecutions at both state/local and Federal levels seems to be attributable to the increase in the capabilities of state and local agencies to expend more time in the investigative phases of incidents of cultivation."(85)

The exact same comment is included in the 1985 DEA report.(86) Interestingly the report dwells on the increase in prosecutions, not the trend towards federal over state prosecution. The 1986 NDEPB review reports on a local backlash to the DEA program which had been developing among local residents. The eradication activity polarized many areas, and drove away business and tourists. In California, the annual eradication program "is viewed by many residents as an annual trauma."(87)

The report noted that 23% of the public favored legalizing marijuana, and that the public generally frowns on locking up marijuana users. It was believed that the general public held that cocaine presented a more serious problem than marijuana, and that the courts were too crowded to handle marijuana cases. "Most respondents believed that if the federal government withdrew its support, state and local operations would shrink to token levels."(88)

The report describes some of the unintended results of eradication activity. For example: "In a bizarre case in Hawaii, the . . . helicopter flew so close to a rabbit farm that the noise caused a panic and fighting among its inhabitants. More than 7000 bunnies died in this incident."(89) Another problem is that the heavy-handed nature of their paramilitary operations created bad press and damaging political fallout. "CAMP [the California program] has unintentionally increased the visibility of pro-legalization arguments and their sponsors because of the extended debate over costs and tactics."(90)

This review of cannabis eradication efforts listed four reasons why they haven't worked:

1) Law enforcement agencies feud and compete.

2) They aren't being hard enough on offenders. Although the Program is frequently referred to as the 'Eradication' Program, the word 'Suppression' in the title is of equal importance. The goal of the program is to deter the cultivation of cannabis in the United States.

3) Sentences are too light, there is a lack of federal prosecutions, and light sentences are doled out in local prosecutions.

4) "Anti-federal sentiment is often high in rural southern and western states. Since many communities consider growers an economic benefit to the area, there is little enthusiasm for prosecution."(91)

Furthermore, the report argues, it is unrealistic to pursue full enforcement of marijuana cultivation laws.

"The limits of law enforcement are set by practical realities and public support. It is simply not feasible to investigate and establish the ownership of the 40,000 plots eradicated last year. Seizing eight houses on a block of ten for growing a few plants in the backyard is feasible but imprudent. Federal drug efforts must remain sensitive to public opinion. Pro-drug organizations have demonstrated their ability to use the media and would certainly exploit efforts that might appear disproportionate to the situation. Effective law enforcement in any area requires the good will of the people."(92)

The DEA, though, remained insensitive to public opinion and proceeded full steam ahead with prosecutions and property seizures. In 1988 the DEA began to advocate stiffer sentences for marijuana cultivation.

"The overall 1988 Domestic Eradication Program was a success. In 1989, the program will strive for increased follow-up investigations and increased asset seizures. Additionally, DEA will strive for an increase in federal prosecutions of cultivators under the new federal minimum mandatory sentence provisions."(93)

The DEA had come to the conclusion that they weren't going to get convictions or deterrent sentences in state and local courts.

"Most arrests and prosecutions for marijuana cultivation are at the state and local level. Conviction rates are high with many growers entering pleas to lesser included charges. Sentences are usually a term of probation and or fine. A marijuana grower is more likely to be sentenced to prison if convicted in Federal Court. Among the states surveyed, prison overcrowding was consistently mentioned as a reason convicted growers are not sentenced to jail."(94)

To put it simply, the DEA's position was that this situation could not be allowed to stand, and that our heritage of local discretion over law enforcement had to be disregarded, or their program would grind to a halt.

"The criminal justice system's laxity in dealing with offenders does not encourage defendants to cooperate with authorities. Growers are aware that they face a minimal chance of conviction and incarceration. Fines are viewed as a cost of doing business. There is no deterrence when the profit potential exceeds the potential loss. The lack of defendants cooperating detracts from the intelligence data base regarding marijuana cultivation activities."(95)

By 1988, the DEA was ready to disregard issues such as male plants, plant potency, value, and personal use on account of new legislation passed by Congress. The number of plants become the sole legal issue for sentencing.

"The Anti-drug Abuse Act of 1988 includes provisions for mandatory Federal prison sentences, depending on the number of marijuana plants involved. For one hundred plants or more, the statute provides for mandatory 5 year prison sentences. For more than one thousand plants, a mandatory 10 year prison sentence is provided. The DCE/SP will emphasize Federal prosecution for cultivation investigations involving 100 plants and more."(96)

1988 also marks another turning point in federal involvement in the anti-marijuana war. The Anti-Drug Abuse Act of 1988 also provided "authority for the Civil Air Patrol to assist in drug eradication and interdiction. The 1988 Defense Appropriation Bill gave additional funding to the National Guard and the Department of Defense for drug eradication and interdiction. "(97)

By 1989 the DEA was ready to acknowledge the federalization of marijuana cultivation offenses as a fait acompli.

"In the past, DEA considered the growing of domestic marijuana as a state and local law enforcement problem. . . . A review of the domestic cannabis situation by DEA's Cannabis Investigations Section (OM) indicated that DEA had to change its domestic marijuana enforcement policy. It is imperative that DEA continue to lead a unified state, local and Federal enforcement effort directed toward the arrest and conviction of marijuana growers."(98)

By 1990 it was clear that many aspects of the cultivation issue had not changed since the NDEPB report in 1986.

"In many areas of the country, with depressed economies and high unemployment, cannabis cultivation has proliferated. Particularly in rural areas, money from marijuana trafficking has a significant impact on local economies. Advanced agronomic techniques, a preference for a more potent seedless marijuana, a lessened fear of arrest, and high profits have all contributed toward an increase in cannabis cultivation."(99)

Also by this time the DEA was well into Operation Green Merchant, in which they seized customer records from various vendors in order to create investigative leads regarding possible indoor marijuana cultivation. In 1989 Green Merchant produced 30,000 investigative leads. (100) By 1990 Green Merchant produced 57,000 leads, with no state in the country providing less than 100 leads.(101) These figures are indicators of just how widespread indoor marijuana cultivation is, as well as an indication of how the DEA spends a lot of its time - looking for small-time indoor marijuana growers.

Despite the history of the program and its obvious failures, the DEA has maintained every year since 1982 that the program is a great success. If measured against the goal of acquiring power and authority for the DEA, the program has been very successful. According to their 1991 report, the new excuse for greater police powers will be derived from the entry of "criminal organizations" into marijuana cultivation.

"The Domestic Cannabis Eradication/Suppression Program has been such a success that in 1992, the Cannabis Investigations Section will again focus on asset seizures as well as intensify efforts to dismantle and disrupt criminal organizations that are cultivating marijuana in the United States. Likewise, efforts will be directed toward increased arrests and Federal prosecution of cultivators under the Federal minimum mandatory sentencing statutes."(102)

 

 
 
 
  
 
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