The contradictions of marijuana legalization

Where there's political will, there's a way ... sort of

• Joseph Darius Jaafari
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  Joseph Darius Jaafari was a staff writer for the PA Post. His work covering crime, the military and LGBTQ issues has been featured in The Marshall Project, Rolling Stone Magazine, The Atlantic and The New York Times. He is a graduate of the Newmark Graduate School of Journalism at CUNY, and an award-winning documentary filmmaker who has produced for VICE and The New York Post. He is a native Arizonan and infamous for his love of tacos.

One of the consistent questions I get asked is why a person in Harrisburg won’t get charged for using marijuana, but a person in Altoona might.

Pennsylvania is one of 22 states with a medical marijuana law. But while a handful of other states have gone the extra step of fully legalizing and taxing the drug, Pennsylvania – as a whole – still criminalizes recreational marijuana usage.

Whether laws barring recreational use and possession of marijuana are enforced is a question of political will. District attorneys have wide powers when it comes to prosecuting the law. They can decide when to prosecute people accused of certain crimes, and they have the ability to say that their offices won’t prosecute crimes at all.

Think of it in terms of outdated laws. For example, in Pennsylvania it’s illegal to barter a child for goods (but if you do, it’s only a misdemeanor). It’s also illegal to be a fortune teller in the state. Rarely, though, are these laws being prosecuted. And if a police officer arrests someone for, say, fortune telling, the district attorney can decline to prosecute for the very good reason that it would tie up court resources and money.

Put simply, there are some crimes on the books that aren’t prosecuted because there are bigger, badder people to deal with.

In Philadelphia and Pittsburgh, for example, smoking or carrying small amounts of marijuana in public results in little more than a ticket and a fine. Steelton, Harrisburg, York and State college also reduced penalties for weed users. In dozens of other cities, however, simple possession can still land someone at least 30 days in jail.

Even if a city decriminalizes recreational marijuana, local police sometimes choose to enforce law, according to a Philadelphia Inquirer story published last week.

“It’s because police in many of those cities don’t follow the decriminalization statutes,” Patrick Nightingale, a cannabis law attorney and advocate in Pittsburgh, told The Inquirer. “The statutes are not binding on police or the District Attorney’s Offices. They’re voluntary. Police can still make arrests at their discretion.”

When I was covering crime in Brooklyn, this was a constant problem in Brooklyn District Attorney Ken Thompson’s office. The DA essentially said his office wouldn’t prosecute or jail people who were marijuana users. But the NYPD continued to arrest people for using and possessing it. The targets of those arrests, a New York Times investigation found, were primarily black men.

Whereas many cities might decriminalize usage and refuse to prosecute marijuana users, there has been a consistent discrepancy among people who are already caught up in the criminal justice system — specifically, among those who are on parole and probation.

Last November, The Philadelphia Inquirer looked at multiple cases across the state where people were punished for violating the terms of their parole or probation because they used marijuana to treat a medical problem. The newspaper found that marijuana offenses for those on probation or parole continue to be primary reasons for Philadelphia’s “bloated levels of community supervision and of incarceration —  which are among the highest of any big city and come at an enormous cost.”

“Even as most Philadelphians are free to get high with impunity — facing at worst a $100 fine — judges and probation officers continue to punish people for using the drug, resulting in court-mandated treatment, extended probation, and even incarceration,” the paper wrote.

The ACLU of Pennsylvania sued the state in 2019, representing three people who were incarcerated for marijuana usage while on parole, despite the fact that each had a prescription for the drug. The case is currently heading to the state Supreme Court.

The Marshall Project highlighted one of the people the ACLU is currently representing, Melissa Gass, who needs the drug to prevent seizures that are a result of a car crash when she was 10 years old.

Local officials, however, argue it doesn’t matter what local prosecutors or police think. And this is the Achilles’ heel of any marijuana legalization effort at the state or local level: The federal statute banning marijuana usage is the law of the land. — Joseph Darius Jaafari

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