via The Atlantic – August 1994
In the state of Indiana a person convicted of armed robbery will serve about five years in prison; someone convicted of rape will serve about twelve; and a convicted murderer can expect to spend twenty years behind bars. These figures are actually higher than the figures nationwide: eight years and eight months in prison is the average punishment for an American found guilty of murder. The prison terms given by Indiana judges tend to be long, but with good behavior an inmate will serve no more than half the nominal sentence. Those facts are worth keeping in mind when considering the case of Mark Young. At the age of thirty-eight Young was arrested at his Indianapolis home for brokering the sale of 700 pounds of marijuana grown on a farm in nearby Morgan County. Young was tried and convicted under federal law. He had never before been charged with drug trafficking. He had no history of violent crime. Young’s role in the illegal transaction had been that of a middleman–he never distributed the drugs; he simply introduced two people hoping to sell a large amount of marijuana to three people wishing to buy it. The offense occurred a year and a half prior to his arrest. No confiscated marijuana, money, or physical evidence of any kind linked Young to the crime. He was convicted solely on the testimony of co-conspirators who were now cooperating with the government. On February 8, 1992, Mark Young was sentenced by Judge Sarah Evans Barker to life imprisonment without possibility of parole.There was so much talk in the 1970s about the decriminalization of marijuana, and the smoking of marijuana is so casually taken for granted in much of our culture, that many people assume that a marijuana offense these days will rarely lead to a prison term. But in fact there may be more people in prison today for violating marijuana laws than at any other time in the nation’s history. Calculations based on data provided by the Bureau of Prisons and the United States Sentencing Commission suggest that one of every six inmates in the federal prison system–roughly 15,000 people–has been incarcerated primarily for a marijuana offense. The number currently being held in state prisons and local jails is more difficult to estimate; a conservative guess would be an additional 20,000 to 30,000. And Mark Young’s sentence, though unusual, is by no means unique. A dozen or more marijuana offenders may now be serving life sentences in federal penitentiaries without hope of parole; if one includes middle-aged inmates with sentences of twenty or thirty or forty years, the number condemned to die in prison may reach into the hundreds. Other inmates–no one knows how many–are serving life sentences in state correctional facilities across the country for growing, selling, or even possessing marijuana.
The phrase “war on drugs” evokes images of Colombian cartels and inner-city crack addicts. In many ways that is a misperception. Marijuana is and has long been the most widely used illegal drug in the United States. It is used here more frequently than all other illegal drugs combined. According to conservative estimates, one third of the American population over the age of eleven has smoked marijuana at least once. More than 17 million Americans smoked it in 1992. At least three million smoke it on a daily basis. Unlike heroin or cocaine, which must be imported, anywhere from a quarter to half of the marijuana used in this country is grown here as well. Although popular stereotypes depict marijuana growers as aging hippies in northern California or Hawaii, the majority of the marijuana now cultivated in the United States is being grown in the nation’s midsection–a swath running roughly from the Appalachians west to the Great Plains. Throughout this Marijuana Belt drug fortunes are being made by farmers who often seem to have stepped from a page of the old Saturday Evening Post. The value of America’s annual marijuana crop is staggering: plausible estimates start at $4 billion and range up to $24 billion. In 1993 the value of the nation’s largest legal cash crop, corn, was roughly $16 billion.
Marijuana has well-organized supporters who campaign for its legalization and promote its use through books, magazines, and popular music. They regard marijuana as not only a benign recreational drug but also a form of herbal medicine and a product with industrial applications. Marijuana’s opponents are equally passionate and far better organized. They consider marijuana a dangerous drug–one that harms the user’s mental, physical, and spiritual well-being, promotes irresponsible sexual behavior, and encourages disrespect for traditional values. At the heart of the ongoing bitter debate is a hardy weed that can grow wild in all fifty states. The two sides agree that countless lives have been destroyed by marijuana, but disagree about what should be blamed: the plant itself, or the laws forbidding its use.
The war on drugs embraced by President Ronald Reagan began largely as a campaign against marijuana organized by conservative parents’ groups in the late 1970s. After more than a decade in which penalties for marijuana offenses had been reduced at both the state and federal levels, the laws regarding marijuana were made much tougher in the 1980s. More resources were devoted to their enforcement, and punishments more severe than those administered during the “reefer madness” of the 1930s became routine. All the legal tools commonly associated with the fight against heroin and cocaine trafficking–civil forfeitures, enhanced police search powers, the broad application of conspiracy laws, a growing reliance on the testimony of informers, and mechanistic sentencing formulas, such as mandatory minimums and “three strikes, you’re out”–have been employed against marijuana offenders. The story of how Mark Young got a life sentence reveals a great deal about the emergence of the American heartland as the region where a vast amount of the nation’s marijuana is now grown; about the changing composition of the federal prison population; and about the effects of the war on drugs, a dozen years after its declaration, throughout America’s criminal-justice system. Underlying Young’s tale is a simple question: How does a society come to punish a person more harshly for selling marijuana than for killing someone with a gun?
The Plant in Question
“MARIJUANA” is the Mexican colloquial name for a plant known to botanists as Cannabis sativa. In various forms it has long been familiar throughout the world: in Africa as “dagga,” in China as “ma,” in Northern Europe as “hemp.” Although cannabis most likely originated in the steppes of central Asia, it now thrives in almost any climate, spreading like milkweed or thistle, crowding out neighboring grasses and reaching heights of three to twenty feet at maturity. Marijuana has been cultivated for at least 5,000 years; it is one of the oldest agricultural commodities not grown for food. The stalks of the plant contain fibers that have been woven for millennia to make rope, canvas, and paper. Cannabis is dioecious, spawning male and female plants in equal proportion. The flowering buds of the female–and to a lesser extent those of the male–secrete a sticky yellow resin rich with cannabinoids, the more than sixty compounds unique to marijuana. Several of them are psychoactive, most prominently delta-9-tetrahydrocannabinol (THC).
Lester Grinspoon, an associate professor of psychiatry at Harvard Medical School, believes that marijuana will someday be hailed as a “miracle drug,” one that is safe, inexpensive, and versatile. In his book Marihuana, the Forbidden Medicine (1993) Grinspoon provides anecdotal evidence that smoking marijuana can relieve the nausea associated with chemotherapy, prevent blindness induced by glaucoma, serve as an appetite stimulant for AIDS patients, act as an anti-epileptic, ward off asthma attacks and migraine headaches, alleviate chronic pain, and reduce the muscle spasticity that accompanies multiple sclerosis, cerebral palsy, and paraplegia. Other doctors think that Grinspoon is wildly optimistic, and that no “crude drug” like marijuana–composed of more than 400 chemicals–should be included in the modern pharmacopoeia. They point out that effective synthetic drugs, of precise dosage and purity, have been developed for every one of marijuana’s potential uses. Dronabinol, a synthetic form of delta-9-THC, has been available for years, though some clinical oncologists find it inferior to marijuana as an anti-nausea agent. There have been remarkably few large-scale studies that might verify or disprove Grinspoon’s claims. Nevertheless, thirty-six states allow the medicinal use of marijuana, and eight patients are currently receiving it from the Public Health Service. According to Grinspoon, the federal government has always been far more interested in establishing marijuana’s harmful effects than in discovering any of its benefits, while major drug companies have little incentive to fund expensive research on marijuana. As Grinspoon explains, “You cannot patent this plant.”
The long-term health effects of chronic marijuana use, and marijuana’s role as a “gateway” to the use of other illegal drugs, are issues surrounded by great controversy. Marijuana does not create a physical dependence in its users, but it does create a psychological dependence in some. People who smoke marijuana are far more likely to experiment later with other psychoactive drugs, but no direct cause-and-effect relationship has ever been established. Delta-9-THC is highly lipid-soluble and has a half-life of five days, which means that it diffuses widely throughout the human body and remains there for quite some time: an occasional user can fail a urine test three days after smoking a single joint, and a heavy user may test positive after abstaining from marijuana for more than a month. Delta-9-THC’s persistence within various cells and vital organs (also a characteristic of Valium, Thorazine, and quinine) suggests that it could have the ability to exert subtly harmful effects; few have yet been proved. Studies of lifelong heavy marijuana users in Jamaica, Greece, and Costa Rica reveal little psychological or physiological damage. Much more research, however, needs to be done in the areas of cognition, reproduction, and immunology. Adolescent users in particular would be at risk if marijuana were found to have pernicious systemic effects. Some studies have shown that short-term memory deficiencies in heavy smokers, though reversible, may endure long after the cessation of marijuana use. Other studies have demonstrated in vitro and in laboratory animals that marijuana may have a mild immunosuppressive effect, but no study has conclusively linked delta-9-THC to immune-system changes in human beings. Well-publicized horror stories from the 1970s–that marijuana kills brain cells, damages chromosomes, and prompts men to grow breasts–were based on faulty research.
Smoking marijuana does seem to damage the pulmonary system, in some of the ways that inhaling tobacco smoke does. In a study of people who have smoked four or five joints a day for more than ten years, the physician Donald P. Tashkin, of the University of California at Los Angeles Medical Center, has found substantial evidence that marijuana smoke can cause chronic bronchitis, changes in cells of the central airway which are potentially pre-cancerous, and an impairment in scavenger-cell function which could lead to a risk of respiratory infection. A joint seems to deliver four times as much carcinogenic tar as a tobacco cigarette of the same size. Tashkin expects that some heavy marijuana users will eventually suffer cancers of the mouth, throat, and lungs, although none of his research subjects has yet developed a malignancy. Oddly enough, the more potent strains of marijuana may prove less dangerous, since less of them needs to be smoked.
There is much less disagreement about the short-term health effects of marijuana. According to the physician Leo Hollister, a former president of the American College of Neuropsychopharmacology, who now teaches at the University of Texas, the occasional use of marijuana by a healthy adult poses no greater risks than the moderate consumption of alcohol. For a variety of reasons, however, marijuana should not be smoked by schizophrenics, pregnant women, and people with heart conditions. Although the misuse of over-the-counter medications such as aspirin, acetaminophen, and antihistamines each year kills hundreds of Americans, not a single death has ever been credibly attributed directly to smoking or consuming marijuana in the 5,000 years of the plant’s recorded use. Marijuana is one of the few therapeutically active substances known to man for which there is no well-defined fatal dose. It has been estimated that a person would have to smoke a hundred pounds of marijuana a minute for fifteen minutes in order to induce a lethal response.
Criminalized, Decriminalized, Recriminalized
THE first American law pertaining to marijuana, passed by the Virginia Assembly in 1619, required every farmer to grow it. Hemp was deemed not only a valuable commodity but also a strategic necessity; its fibers were used to make sails and riggings, and its by-products were transformed into oakum for the caulking of wooden ships. Virginia, Pennsylvania, and Maryland eventually allowed hemp to be exchanged as legal tender, in order to stimulate its production and relieve Colonial money shortages. Although a number of the Founding Fathers, including George Washington and Thomas Jefferson, later grew hemp on their estates, there is no evidence that they were aware of the plant’s psychoactive properties. The domestic production of hemp flourished, especially in Kentucky, until after the Civil War, when it was replaced by imports from Russia and by other domestic materials. In the latter half of the nineteenth century marijuana became a popular ingredient in patent medicines and was sold openly at pharmacies in one-ounce herbal packages and in alcohol-based tinctures as a cure for migraines, rheumatism, and insomnia.
The political upheaval in Mexico that culminated in the Revolution of 1910 led to a wave of Mexican immigration to states throughout the American Southwest. The prejudices and fears that greeted these peasant immigrants also extended to their traditional means of intoxication: smoking marijuana. Police officers in Texas claimed that marijuana incited violent crimes, aroused a “lust for blood,” and gave its users “superhuman strength.” Rumors spread that Mexicans were distributing this “killer weed” to unsuspecting American schoolchildren. Sailors and West Indian immigrants brought the practice of smoking marijuana to port cities along the Gulf of Mexico. In New Orleans newspaper articles associated the drug with African-Americans, jazz musicians, prostitutes, and underworld whites. “The Marijuana Menace,” as sketched by anti-drug campaigners, was personified by inferior races and social deviants. In 1914 El Paso, Texas, enacted perhaps the first U.S. ordinance banning the sale or possession of marijuana; by 1931 twenty-nine states had outlawed marijuana, usually with little fanfare or debate. Amid the rise of anti-immigrant sentiment fueled by the Great Depression, public officials from the Southwest and from Louisiana petitioned the Treasury Department to outlaw marijuana. Their efforts were aided by a lurid propaganda campaign. “Murder Weed Found Up and Down Coast,” one headline warned; “Deadly Marijuana Dope Plant Ready For Harvest That Means Enslavement of California Children.” Harry J. Anslinger, the commissioner of the Federal Bureau of Narcotics, at first doubted the seriousness of the problem and the need for federal legislation, but soon he pursued the goal of a nationwide marijuana prohibition with enormous gusto. In public appearances and radio broadcasts Anslinger asserted that the use of this “evil weed” led to killings, sex crimes, and insanity. He wrote sensational magazine articles with titles like “Marijuana: Assassin of Youth.” In 1937 Congress passed the Marijuana Tax Act, effectively criminalizing the possession of marijuana throughout the United States. A week after it went into effect, a fifty-eight-year-old marijuana dealer named Samuel R. Caldwell became the first person convicted under the new statute. Although marijuana offenders had been treated leniently under state and local laws, Judge J. Foster Symes, of Denver, lectured Caldwell on the viciousness of marijuana and sentenced him to four hard years at Leavenworth Penitentiary.
Harry J. Anslinger is a central figure in the history of American drug policy. He headed the Federal Bureau of Narcotics from its inception through five presidential Administrations spanning more than three decades. Anslinger had much in common with his rival, J. Edgar Hoover. Both were conservative, staunchly anti-communist proponents of law and order who imbued nascent federal bureaus with their own idiosyncracies. Anslinger did not believe in a public-health approach to drug addiction; he dismissed treatment clinics as “morphine feeding stations” and “barrooms for addicts.” In his view, strict enforcement of the law was the only proper response to illegal drug use; he urged judges to “jail offenders, then throw away the key.” Anslinger’s outlook was consistent with that of most Americans, though his opinions proved more resistant to new scientific evidence. When the New York Academy of Medicine–after years of research–issued a report in 1944 concluding that marijuana use did not cause violent behavior, provoke insanity, lead to addiction, or promote opiate use, Anslinger angrily dismissed its authors as “dangerous” and “strange.”
America’s drug problem often seemed the work of foreign powers: during the Second World War, Anslinger accused the Japanese of using narcotics to sap America’s will to fight; a few years later he asserted that Communists were attempting the same ploy. The Boggs Act, passed by Congress at the height of the McCarthy era, specified the same penalties for marijuana and heroin offenses–two to five years in prison for first-time possession. As justification for the long sentences contained in that act and in the Narcotic Control Act, which followed in 1956, Anslinger stressed marijuana’s crucial role as a “stepping-stone” to narcotics addiction. Like Hoover, he maintained dossiers on well-known entertainers whose behavior seemed un-American. Anslinger disliked jazz and kept a special file, “Marijuana and Musicians,” filled with reports on band members who played with Cab Calloway, Louis Armstrong, Les Brown, Count Basie, Jimmy Dorsey, and Duke Ellington, among others. For months Anslinger planned a nationwide roundup of popular musicians–a scheme that was foiled by the inability of FBN agents to infiltrate the jazz milieu. Although Anslinger’s opposition to drug use was both passionate and sincere, he made one notable exception. In his memoir, The Murderers, Anslinger confessed to having arranged a regular supply of morphine for “one of the most influential members of Congress,” who had become an addict. Anslinger’s biographer believes that addict was Senator Joseph R. McCarthy.
By 1962, when Harry J. Anslinger retired, many states had passed “little Boggs Acts” with penalties for marijuana possession or sale tougher than those demanded by federal law. In Louisiana sentences for simple possession ranged from five to ninety-nine years; in Missouri a second offense could result in a life sentence; and in Georgia a second conviction for selling marijuana to minors could bring the death penalty. As the political climate changed during the 1960s, so did attitudes toward drug abuse. A series of commissions appointed by Presidents John F. Kennedy and Lyndon Johnson repudiated some of the basic assumptions that had guided marijuana policy for more than fifty years, denying a direct link between the drug and violent crime or heroin use. As marijuana use became widespread among white middle-class college students, there was a reappraisal of marijuana laws that for decades had imprisoned poor Mexicans and African-Americans without much public dissent. Drug-abuse policy shifted from a purely criminal-justice approach to one also motivated by interests of public health, with more emphasis on treatment than on punishment. In 1970 the Comprehensive Drug Abuse Prevention and Control Act finally differentiated marijuana from other narcotics and reduced federal penalties for possession of small amounts. As directed by Congress, President Richard Nixon appointed a bipartisan commission to study marijuana. In 1972 the Shafer Commission issued its report, advocating the decriminalization of marijuana for personal use–a recommendation that Nixon flatly rejected. Nevertheless, eleven states, containing a third of the country’s population, decriminalized marijuana in the 1970s, and most other states weakened their laws against it. President Jimmy Carter endorsed decriminalization, and it seemed that long prison sentences for marijuana offenders had been consigned to the nation’s past.
But they had not. One of the seminal events in the creation of the modern American anti-drug movement was a backyard barbecue held in Atlanta, Georgia, during August of 1976. In the aftermath of their daughter’s birthday party, Ron and Marsha Manatt combed through the wet grass in their pajamas, at one in the morning, with flashlights, finding dozens of marijuana roaches, rolling-paper packets, and empty bottles of Mad Dog 20/20 fortified wine discarded by their twelve- and thirteen-year-old guests. Alarmed by these discoveries, the Manatts gathered local parents in their living room and formed what was soon known as the Nosy Parents Association, a group dedicated to preventing teenage drug use. Marsha Manatt wrote to Robert DuPont, the head of the National Institute on Drug Abuse; he helped arrange her introduction to Thomas Gleaton, a professor of health education at Georgia State University. There soon arose the Parents’ Resource Institute for Drug Education and the National Federation of Parents for Drug-Free Youth, two organizations backed by top officials at NIDA and the Drug Enforcement Administration (DEA) which would exert tremendous influence on the nation’s drug policies. Thousands of other parents’ groups soon formed nationwide, and Ross Perot helped launch the Texans’ War on Drugs.
Marijuana use seemed epidemic: a survey in 1976 found that one out of twelve high school seniors smoked pot on a daily basis. In the 1960s the youth counterculture had celebrated marijuana’s reputation as a drug for outcasts and freaks. One Yippie leader had confidently predicted that the slogan of the coming revolution would be “pot, freedom, license.” The conservative parents’ groups took such words to heart and similarly invested marijuana with great meaning. Robert DuPont, who at NIDA had once supported decriminalization, later decried the “tumultuous change in values” among the young–their pursuit of pleasure, their lack of responsibility to society–and argued that “the leading edge of this cultural change was marijuana use.”
The election of Ronald Reagan to the presidency brought the war on drugs to the White House. In June of 1982 President Reagan signed an executive order creating a new post in his Administration–head of the White House Drug Abuse Policy Office–and appointed a chemist, Carlton Turner, to the job. Turner had for many years directed the Marijuana Research Project at the University of Mississippi, running the government’s only marijuana farm. Turner believed that marijuana was an extremely dangerous drug–one that, among other things, might have the power to induce homosexuality. In 1977 the DEA had acknowledged that decriminalization was a policy worth considering; three years later it called marijuana the most urgent drug problem facing the United States. Richard Bonnie, a professor at the University of Virginia Law School who was an influential member of the Shafer Commission staff, believes that advocates of marijuana-law reform were pushed out of the mainstream by the growing stridency and power of the parents’ groups. Political moderates soon abandoned the issue. Amid their silence, philosophies of “zero tolerance” and “user accountability” revived the notion that what drug offenders deserved most was punishment. The Comprehensive Crime Control Act of 1984, the Anti-Drug Abuse Act of 1986, and the Anti-Drug Abuse Amendment Act of 1988 raised federal penalties for marijuana possession, cultivation, and trafficking. Sentences were to be determined by the quantity of the drug involved; “conspiracies” and “attempts” were to be punished as severely as completed acts; and possession of a hundred marijuana plants now carried the same sentence as possession of a hundred grams of heroin.
The Caprice of Geography
MARIJUANA is currently classified as a Schedule I controlled substance, implying that it has a high potential for abuse, no officially accepted medicinal uses, and no safe level of use under medical supervision. Heroin, LSD, and peyote are other Schedule I drugs; cocaine and phencyclidine (PCP) are listed in Schedule II, allowing doctors to prescribe them. Under federal law it is illegal to buy, sell, grow, or possess any amount of marijuana anywhere in the United States. Penalties for a first offense range from probation to life imprisonment, with fines of up to $4 million, depending on the quantity of marijuana involved. Moreover, it is illegal to use the U.S. Postal Service or other interstate shippers for the advertisement, import, or export of such marijuana paraphernalia as roach clips, water pipes, and, in some instances, cigarette papers–a crime that can lead to imprisonment and fines of up to $100,000. Under civil-forfeiture statutes real estate, vehicles, cash, securities, jewelry, and any other property connected with a marijuana offense are subject to immediate seizure. The federal government need not prove that the property was bought with the proceeds of illegal drug sales, only that it was involved in the commission of a crime–that marijuana was grown on certain land or transported in a particular vehicle. Property may be forfeited even after a defendant has been found innocent of the offense, since the burden of proof that applies to people–“beyond a reasonable doubt”–does not apply in accusations against inanimate objects. Property can be forfeited without its owner’s ever being charged with a crime. On top of fines, incarceration, and forfeiture, a convicted marijuana offender may face the revocation or denial of more than 460 federal benefits, including student loans, small-business loans, professional licenses, and farm subsidies. In international smuggling cases the offender’s passport can be revoked.
State marijuana laws were also toughened during the 1980s and now vary enormously. Some states classify marijuana with drugs like mescaline and heroin, while others give it a separate legal category. In New York state possessing slightly less than an ounce of marijuana brings a $100 fine, rarely collected. In Nevada possessing any amount of marijuana is a felony. In Montana selling a pound of marijuana, first offense, could lead to a life sentence, whereas in New Mexico selling 10,000 pounds of marijuana, first offense, could be punished with a prison term of no more than three years. In some states it is against the law to be in a room where marijuana is being smoked, even if you don’t smoke any. In some states you may be subject to criminal charges if someone else uses, distributes, or cultivates marijuana on your property. In Idaho selling water pipes could lead to a prison sentence of nine years. In Kentucky products made of hemp fibers, such as paper and clothing, not only are illegal but carry the same penalties associated with an equivalent weight of marijuana. In Arizona, where marijuana use is forbidden, the crime can be established by the failure of a urine test: a person could theoretically be prosecuted in Phoenix for a joint smoked in Philadelphia more than a week before.
Crossing an invisible state line with marijuana in your car can result in vastly different punishments. If you are caught with three ounces of marijuana in Union City, Ohio, you will probably be fined $100. But if you are caught in the town of the same name literally across the road in Indiana, you could face nine months to two years in prison, a fine of up to $10,000, a felony record, suspension of your driver’s license, forfeiture of your car, and charges of marijuana possession, of possession with intent to distribute, and of “maintaining a common nuisance” (for the criminal use of an automobile). That one arrest in Indiana might cost you the $10,000 fine and at least $5,000 in legal fees, plus the value of your forfeited car. Wide discrepancies in punishment occur not just between states but also from county to county within a given state. In La Salle County, Illinois, a first-time offender arrested with 300 pounds of marijuana might be sentenced to four months in boot camp. Sixty-five miles to the south, in McLean County, the same person convicted of the same crime would more likely receive a prison sentence of four to eight years.
In 1992 more than 340,000 people were arrested nationwide for violating marijuana laws. Almost three quarters of those arrests were for simple possession, a crime that generally does not lead to incarceration. But possession of more than an ounce–roughly equal to the amount of tobacco in a pack of cigarettes–is in many states a felony. Conviction may lead to a few months or a few years behind bars and the loss of a house or a job. People who use marijuana as medicine must either buy it from drug dealers or grow it themselves, often in violation of the law. James Cox, a cancer patient in St. Louis, was found guilty of growing marijuana and sentenced to fifteen years in prison; after the verdict both he and his wife attempted suicide. Orland Foster, an AIDS patient in North Carolina, served fifteen months for growing marijuana; one of his cellmates served less time for killing a woman. Now on probation, Foster must either give up marijuana and risk losing weight, or violate the terms of his release and risk going back to prison.
In perhaps the most extraordinary case of this kind, Jim Montgomery, a paraplegic immobilized from the waist down, who smoked marijuana to relieve muscle spasms, was arrested in Sayre, Oklahoma, when sheriffs found two ounces of pot in the pouch on the back of his wheelchair. Montgomery was tried and convicted in 1992, by a jury, for possession of marijuana with intent to distribute, for possession of paraphernalia, for unlawful possession of a weapon during the commission of a crime (two handguns inherited from his father, a police officer), and for maintaining a place resorted to by users of controlled substances. His sentence was life in prison, plus sixteen years. Both the judge and the local prosecutor were disturbed by the sentence chosen by the jury; the judge subsequently reduced it to ten years. Montgomery spent ten months in a prison medical unit, where he developed a life-threatening infection, before being released on bond. His appeal is now pending. “I’ll never go back to that prison,” he says. “I’d rather put a bullet in my head.” His case has already cost him more than $30,000 in legal fees. The government’s effort to seize Montgomery’s home, shared with his widowed mother, proved unsuccessful.
Oklahoma today has a well-deserved reputation for being the worst place in the United States to be caught with marijuana. On June 11, 1992, Larry Jackson, a small-time crook with a lengthy record of nonviolent offenses, was arrested at a friend’s Tulsa apartment. On the floor near Jackson’s right foot a police officer noticed a minuscule amount of marijuana–0.16 of a gram, which is 0.005644 of an ounce. Jackson was charged with felony possession of marijuana, convicted, and given a life sentence. In Oklahoma City, Leland James Dodd was given two life sentences, plus ten years, for buying fifty pounds of marijuana from undercover officers in a “reverse sting.” Oklahoma is not alone in handing out life sentences for buying marijuana from the government. In Tuscaloosa County, Alabama, William Stephen Bonner, a truck driver, was sent away for life without possibility of parole after state narcotics agents delivered forty pounds of marijuana to his bedroom. Raymond Pope, a resident of Georgia, was lured to Baldwin County, Alabama, in 1990 with promises of cheap marijuana; he bought twenty-seven pounds from local sheriffs in a reverse sting, was convicted, and was sentenced to life without possibility of parole. Pope’s criminal record consisted of prior convictions for stealing televisions and bedspreads from Georgia motels. He is now imprisoned 400 miles from his family. He has three young children.
Although the penalties for buying, selling, or possessing marijuana are often severe, the penalties for growing it can be even more severe. In Iowa cultivating any amount can lead to a five-year prison sentence, in Colorado to an eight-year sentence, in Missouri to a fifteen-year sentence. In the state of Virginia the recommended punishment for growing a single marijuana plant is a prison term of five to thirty years.
A Farm in Morgan County
IN November of 1988 Claude Atkinson and Ernest Montgomery met at a Denny’s near the airport in Indianapolis to discuss setting up a large-scale marijuana-growing operation. Atkinson, a fifty-nine-year-old Indiana native, was by all accounts charismatic and highly skilled at cultivating marijuana. Ostensibly a used-farm-implements dealer, Atkinson had organized huge marijuana farms in Illinois, Indiana, and Kentucky. His knowledge of growing techniques was much more impressive than his skill at eluding capture. In 1984 law-enforcement authorities had linked him to a pot farm in Paragon, Indiana; the following year he was caught growing marijuana with artificial light in an immense Indianapolis warehouse; and in 1987 a deer hunter stumbled upon thousands of his marijuana plants in an Indiana field. Claude Atkinson had cut a series of deals with the government, informing on others after each arrest and serving brief terms in prison, where he recruited employees for future ventures. Now fresh out of custody and broke, he was ready to get back into the growing business. Ernest Montgomery was an unemployed truck driver in his early forties who wanted to make big money. They agreed to form a partnership, with Montgomery supplying the capital and Atkinson the expertise. Soon after their meeting Claude Atkinson went to the Indiana statehouse and formed a dummy corporation, R.P.Z. Investments, using one of his many pseudonyms, Arno Zepp.
That fall Atkinson supervised the construction of a large “grow room” in the basement of a secluded cabin that Montgomery owned in Gosport. Montgomery enlisted his younger brother, Jerry, a gravedigger with a slight drinking problem, to help with the task. Together the three men drilled holes in the concrete floor for drainage, built a cooling system, assembled ballasts and reflectors, suspended grow lights with thousand-watt halide bulbs from the ceiling, and planted marijuana seeds in small pots. They installed a generator so that the operation would not be detected through an incongruously high electric bill. Montgomery invited David Lee Haynes, a young lumberyard ripsaw operator from Louisville, Kentucky, and the son of an old friend, to come live at the cabin and tend the plants. After digging graves all day, Jerry Montgomery would visit the dark basement in the evenings. By spring the group had approximately 12,500 seedlings of marijuana, contained in sixteen plywood flats. What they needed next was a farm.
In May of 1989 Martha Brummett, an elderly woman hard of hearing, agreed to lease her farmhouse halfway between Eminence and Cloverdale, in Morgan County, to R.P.Z. Investments. It came with about forty acres, a barn, and an option to buy. Martha Brummett was surprised that when a “Charlie Peters” arrived to sign the lease, the woman with him remained in the car and never entered the house. Nevertheless, Brummett innocently signed over her farm for $10,000 in cash, which she then took straight to her bank.
After Ernest Montgomery and his wife, Cindy, obtained the house, David Haynes moved into it, to babysit the operation, having obtained a sham rental agreement from R.P.Z. Investments as a legal buffer against what was about to happen on the land. The group plowed and tilled the field, fertilized it, and planted corn. Once the corn had reached a good height, they planted marijuana, hiding it amid the stalks. Over the summer they walked the fields, “sexing” the marijuana–eliminating all the males. The females, left unpollinated, would produce a much higher level of delta-9-THC in their buds, and would thus become a much more valuable crop: sensimilla. In late September, before the corn leaves turned golden, the group harvested the marijuana and then cured it in the barn for two weeks and cut it into “books” about a foot wide and three feet long. The books were hauled into the farmhouse or driven to the cabin in Gosport for manicuring: the stems, orphan leaves, and fan leaves were separated from the precious buds. So far the operation had gone smoothly. Soon there would be about 900 pounds of high-quality marijuana to sell. Now the group needed buyers. Ernest Montgomery thought that Mark Young, a man whom he had met a few times with Cindy, might know the right people to call.
Mark Young was thirty-six and had been smoking marijuana on a daily basis since his late teens. He grew up in Christian Park Heights, a middle-class neighborhood on the east side of Indianapolis. His father left the family when Mark was two; he and his sister, Andrea, were raised by their mother, Mary, who worked as a waitress or a hostess to pay the bills. Young was a willful, stubborn, charming boy, always getting into trouble. He seemed to have, throughout his pranks and petty thefts, the sort of bad luck that is almost uncanny–often he would get caught while his friends got away. Young dropped out of high school after a year, became a father at the age of sixteen, married to give the child his name, divorced, worked as a carpet-layer, washed dishes, laid concrete, tended bar, sold used cars, and rebuilt Harley-Davidson motorcycles. He kept an album filled with pictures of his favorite Harleys. He knew all the local biker gangs, but remained apart; Young seemed to get into enough trouble on his own. He dated many attractive women, lived a fast life, and slowly acquired a criminal record–nothing violent, just misdemeanors for driving without a license, for possession of marijuana, for taking a girlfriend’s stereo. He also earned two felony convictions: one at the age of twenty-one, for attempting to pass a fraudulent prescription, and the other at the age of twenty-five, for possession of a few amphetamines and Quaaludes. Each felony brought a suspended sentence, probation, and a one-dollar fine. When Ernest Montgomery called, Mark Young was rebuilding motorcycles, selling used cars wholesale, and looking for new income. He had held a financial interest in a number of massage parlors, which were now closed. His dream was to get some money, move to Florida, build custom Harleys, and work part-time as a fishing guide on Lake Okeechobee.
Claude Atkinson, Ernest Montgomery, and Mark Young met in the family room of Young’s house in early October. The price of the marijuana was set at $1,200 a pound. If Young found buyers, he would receive a commission of $100 for every pound sold. Not long after, Atkinson and Montgomery returned to Young’s house, where they were introduced to two men from Florida who were acting on behalf of someone seeking to buy all the marijuana the group could supply. Atkinson offered a hundred pounds a week; the marijuana was still being manicured and could not be delivered all at once. Within days a man from New York arrived at Young’s house with $120,000 in a cardboard box. While the New York buyer inspected the marijuana at Montgomery’s Indianapolis house, Atkinson remained behind, counting the money. The deal was completed, and Young was handed $10,000 in cash. The New York buyer eventually paid for 600 more pounds, in transactions that took place at Montgomery’s house. By Christmas all the high-quality marijuana was gone, the last 200 pounds either distributed to workers who had helped with various tasks or sold to an acquaintance of Montgomery’s in Illinois.
The town of Eminence, Indiana, is about twenty-five miles west of Indianapolis. Near its only intersection is a Citizens Bank, a small church, a convenience store, and a post office built of concrete blocks and painted royal blue. The town boasts 180 inhabitants and looks as though it has not seen much new construction since the interval between the world wars. There are countless small towns like Eminence across the Midwest, slightly faded but still eulogized as the heartland of this country. To reach the farm used by R.P.Z. Investments, one must leave Eminence on a narrow country road and then turn onto a dirt road and drive for a long stretch, past fields of fifty to a hundred acres where corn, hay, soybeans, and wheat are grown, past modest farms with collapsing outbuildings, an occasional trailer home, and rusted cars on cinder blocks. Farther west the land is flat, the acreage of each plot enormous, but here the countryside feels long settled, with hedges and trees marking boundary lines. After cleaning out the barn, Atkinson and Montgomery allowed the lease on Martha Brummett’s property to expire. The one-story farmhouse has been painted beige by its latest occupants; the barn remains bright red. There is a porch on the front of the house, an enclosed patio on one side, and a swing set on the lawn. Looking at this humble farm, one would hardly believe that more than a million dollars’ worth of marijuana had been grown there in the space of about three months.
Inside The Industry
STEVE White looks like an ordinary Indiana farmer, with slightly unkempt hair, a graying beard, teeth stained by nicotine, and strong hands. The day we met, he wore an old flannel shirt, gray pants, and battered work boots. His voice has a low rural twang. He seems to belong in an old pickup, riding through a vast dusty field. White is the Indiana coordinator for the Drug Enforcement Administration’s Cannabis Eradication/Suppression Program. Of his twenty-six years in federal law enforcement, twenty-one have been spent in Indiana, working undercover. He knows the state backwards and forwards–has walked it, driven it, and flown low over it every summer, scrutinizing hills and farmland. Nobody ever thinks he is a cop. He gets along well with rural people. He grew up in New York City and attended P.S. 20; his father worked on Wall Street. He travels to London each year to indulge a passion for collecting English antique toy soldiers. Special Agent White would be an implausible character in any work of fiction. Savvy, articulate, self-deprecating, and blunt, he defies easy categorization and probably knows more about growing marijuana than most of the people he arrests.
Claude Atkinson was an extremely talented grower with a “good product,” White says–and “a super salesman.” The operation near Eminence was of average size for its time. It is difficult, even from the air, to find marijuana hidden in corn: “Remember North by Northwest?” White says. “Cary Grant in the cornfield? We don’t have cornfields like that anymore, with wide rows. They broadcast the stuff, and it’s just thicker than hell.” Sometimes patches of marijuana will be distributed here and there amid hundreds of acres. Discovering one may not lead to the others. Growers tend to be much more concerned about hiding their marijuana from thieves than from the government. A rural underworld has emerged around marijuana, secretive and unknown to outsiders; booby traps are laid in cornfields. There is now a group of people in the Marijuana Belt, known as “patch pirates,” who earn a living solely by stealing marijuana from growers, whom they follow. White acknowledges that the booby traps are usually aimed at patch pirates, not his own men; nevertheless, fishhooks strung at eye level on fishing line are nondiscriminatory. Outdoor marijuana farms have become smaller in the past few years, though last summer White’s agents found “60,000 beautiful plants” on a farm in Tippecanoe County. The case proved a disappointment: the DEA never found the grower. “What I want is bodies,” White explains. “I don’t give a damn about the dope–that’s just something we’re going to burn up.” His job involves a daily cat-and-mouse pursuit of marijuana growers, with both sides changing tactics, adopting new technologies, and often, after an arrest, amicably discussing tricks of the trade. White harbors no animosity toward his prey. “These are not heroin or cocaine dealers,” he says. “They’re not violent. I find a lot of them personally engaging.” What they are doing is against the law, however, and White loves tracking them down. He has had a good deal of success lately. In 1992 Indiana led the nation in federal arrests for marijuana. Last year it ranked third.
Take a map of the United States and draw a circle, including within its circumference Indiana, Illinois, and Michigan, with portions of Ohio to the east, Kentucky and Tennessee to the south, and Missouri, Iowa, and Nebraska to the west. The region within that circle, Steve White believes, is producing the majority of the marijuana grown in the United States. The highest-quality marijuana is cultivated indoors on the West Coast, but for sheer volume, no other area surpasses the U.S. heartland. White does not find this surprising. During the Second World War the U.S. government encouraged farmers throughout the Corn Belt to plant almost 300,000 acres of marijuana, in the hopes of replacing fiber supplies from Asia which had been cut off by the Japanese. The program, whose slogan was “Hemp for Victory,” turned out to be a financial disaster and left marijuana growing wild throughout the region. Known as ditchweed, this marijuana now blankets tens of thousands of acres. For years it had a negligible delta-9-THC content, and was used mainly as filler by drug dealers, but there is evidence that the ditchweed may be cross-pollinating with the potent marijuana now cultivated outdoors. The same growing conditions and soil that are ideal for corn are also ideal for marijuana. Most local sheriff’s departments employ only three to five officers, with more important things to do than hunt for marijuana. And over the past fifteen years there have been a lot of people with strong agricultural skills who have badly needed money–or have wanted more of it than almost any other job in the region could provide. A bushel of corn sells for roughly $2.50, a bushel of manicured marijuana for about $70,000. White thinks that marijuana is the largest cash crop in the United States, and if not the largest in Indiana, then right up there with corn and soybeans. Though he is proud of what his office has accomplished, White has no illusions: “There’s more than we think.”
During the 1960s and early 1970s nearly all the marijuana smoked in the United States was imported, mainly from Mexico, Colombia, and Jamaica. Domestic production rose in reaction to a number of events. The spraying of an herbicide, paraquat, over Mexican marijuana fields, begun in 1975, created uneasiness about that nation’s product. Successful interdiction efforts by the U.S. Border Patrol and the Coast Guard made smuggling marijuana more difficult. And the tougher legal sanctions against trafficking led some foreign drug dealers to switch from marijuana, a bulk agricultural good with a strong smell, to cocaine, which is easier to conceal and brings a far higher return per pound. As marijuana prices rose, American growers responded to consumer demand. Mark A.R. Kleiman, an associate professor at Harvard University’s Kennedy School of Government, finds this to be a rare instance in which protectionism actually worked. The anti-drug movement and the burgeoning American marijuana crop led the DEA to devote more of its resources to marijuana investigations. Kleiman estimates that by 1988 federal anti-marijuana efforts totaled approximately $970 million–about 20 to 25 percent of all federal drug-enforcement expenditures. By 1992 federal convictions for marijuana outnumbered those for heroin, crack cocaine, and LSD combined. The DEA’s Cannabis Eradication/Suppression Program began in 1979 in two states, California and Hawaii; it now looks for marijuana-farming operations–called “grows” or “gardens” by members of the trade–in all fifty states.
No one knows exactly how much marijuana is cultivated in the United States. The numbers published by the government–or anyone else–are largely speculative. In 1992 the DEA eradicated 3,405 metric tons of cultivated marijuana in the United States, an amount the DEA says represents more than half the total domestic output. Critics believe that the DEA actually finds only 10 to 20 percent of the marijuana being grown in this country. With prices ranging from $500 a pound, for low-quality New Mexican marijuana, to more than $5,000 a pound for “boutique” strains like Northern Lights and Afghan Kush, it can be confidently stated that the black market for American marijuana, whatever the actual tonnage, is immense.
Growers are increasingly moving their crops indoors, using artificial light and hydroponics, to avoid theft, reduce the risk of detection, control the growing process, and profit from up to six harvests a year. Thirty mature plants can easily be grown in an area the size of a bathtub. I asked Steve White to list some of the places where he has discovered indoor grow operations. He laughed. “It would be tough for me to say places we haven’t found them.” Often a false wall hides a grow room in a house, or a house’s foundation doesn’t match its basement, which seems oddly smaller, or there are second stories with no stairwells, or crawl spaces are hidden beneath floors. Once White rummaged through a child’s closet and found the entrance to a grow area behind the toys. Without need of a search warrant, the DEA employs thermal-imaging devices, mounted on helicopters and low-flying airplanes, to detect abnormal heat sources that may indicate the presence of an indoor growing operation–or a pottery kiln, or a Jacuzzi. What is found depends upon the skill of the technician. White has learned that one of the best ways to find an indoor grow area is with his nose: no matter how well-vented the operation, and despite electronic devices that can neutralize odors in the air, marijuana will exude a powerful scent. A few years ago indoor grows were often huge. A group of janitors in Anderson, Indiana, who had traveled to Israel to study hydroponics, were caught with 8,100 plants in a building with walls constructed a foot thick to thwart infrared detection. Nowadays growers rent storage units and apartments, using phony names and paying in cash, and build small grow operations at different locations, with timing devices and automatic controls. The authorities may find one or two–a loss anticipated in the grower’s business plan–without being able to trace ownership.
White has smoked marijuana once, while working undercover, and did not enjoy the experience. He chain-smokes cigarettes, regrets it, and sees no need to add marijuana to the nation’s list of legal drugs. “We’ve got tobacco, we’ve got alcohol,” he said. “Jesus Christ, do we need another hallucinogenic, carcinogenic substance on the market?” What disturbs him most about marijuana is the phenomenal sums of money it funnels into an underground economy, and the great resulting potential for corruption among public officials. I asked whether a sense of futility ever creeps into his work, given the extent of cultivation in his state. “I’m not such a fool as to sit here and tell you that we’re going to wipe out marijuana,” he replied. But there is no doubt in his mind that the DEA exerts a deterrent effect. “Every time we have a helicopter go up on a mission,” White said, “there’s someone down below who sees it and thinks, ‘Maybe I better not.'”
Ralph Weisheit, a professor of criminal justice at Illinois State University, does not know Steve White but has come to many of the same conclusions about marijuana cultivation in the Midwest. Weisheit first became interested in the subject eight years ago, when he saw, on the television news, an old Illinois farmer being arrested for cultivating marijuana. The farmer and his son never smoked marijuana; they grew it to save their farm from foreclosure. Weisheit was intrigued. With a grant from the research arm of the U.S. Justice Department, he conducted a two-year study of marijuana cultivation, interviewing law-enforcement officials in five states and dozens of Illinois growers who had been caught and convicted. The book based on that study, Domestic Marijuana: A Neglected Industry (1992), chronicles the rise of marijuana production in the United States and offers a fascinating portrait of the growers. Weisheit agrees that the majority of marijuana grown in America probably originates in the nine-state region described by Steve White. He also thinks that marijuana is the nation’s largest cash crop, by a very wide margin.
Estimates of how many Americans grow marijuana range from one to three million, of which anywhere from 100,000 to 200,000 are commercial growers. Weisheit found that aside from being predominantly white and male, marijuana growers generally do not fit any common stereotypes. Some are pragmatists, growing the drug purely for the money; during the farm crisis of the 1980s many farmers in the Marijuana Belt started cultivating marijuana out of desperation. They found it not only easy money but also easy work. As one farmer told Weisheit, “You know, I spent most of my life trying to kill weeds, so trying to keep one alive was hardly a challenge.” Other growers are hustlers by nature, classic American entrepreneurs; they might as well be selling time-shares in a vacation condominium. They try to build marijuana empires. The risks of the trade only add to its appeal. Other growers are less competitive, giving away marijuana to friends or selling it at slightly above cost, sharing agricultural techniques, comparing their crops the way neighbors might compare homegrown tomatoes. Marijuana growers are educated and uneducated, liberal and conservative. They are extremely secretive, worrying more about thieves than about the police. Few belong to NORML (the National Organization for the Reform of Marijuana Laws) and few read High Times magazine or add their names to any list that might arouse suspicion. Indoor growing often attracts people who love gizmos. There are endless contraptions that can be added to a grow room, from computer-controlled watering systems to electric tables that distribute nutrients evenly by tilting back and forth. Some growers become connoisseurs, producing high-quality marijuana in small quantities, manipulating not only the level of delta-9-THC through cross-breeding but also the proportions of all the other cannabinoids to subtly–or not so subtly–affect the nature of the high. Weisheit met growers and law-enforcement officers alike who were extraordinarily passionate about marijuana, eager to discuss its arcane details for hours. He was surprised, after the publication of his book, by how little controversy it generated in either camp. His mother was disturbed, however, by one of its central implications: “She’s very anti-drug,” Weisheit says, “and her comment was, ‘The thing I don’t like about this book is that it makes these people seem so normal.'”
Late one night I met a commercial marijuana grower who introduced himself as “Dave.” He has been growing marijuana on and off for more than a decade, beginning outdoors and graduating to a series of increasingly complex indoor grow systems. Understandably paranoid and suspicious, Dave is also quite proud of his work and regrets being unable to discuss it with friends. His grow operation had to be built surreptitiously, over a period of weeks, like a factory assembled by hand. It utilizes about $50,000 worth of high-tech hydroponic equipment. When the construction was complete, the whole thing looked so beautiful that Dave wanted to throw an opening-night party, but he decided that would not be a good idea. Though he always hated gardening and never passed a science class in his life, he now has a grasp of marijuana botany, plant biology, and advanced greenhouse-management techniques which only Special Agent White could fully appreciate. As he smoked some of his most recent harvest, Dave shared with me some of the pleasures, risks, rewards, and bizarre phenomena associated with his profession.
Hidden behind a fake wall, entered through a secret door, in a neighborhood where you would never, ever, expect to find it, Dave’s operation is much larger than most. There are hundreds of marijuana plants in long rows, growing from cubes of rock wool, a soil-less medium spun from synthetic fibers, connected through an intricate system of white plastic pipes. Suspended above them are extremely bright high-pressure sodium lights, which require a surge of power from special ballasts to start up. On the ceiling is the bluish flame of a carbon-dioxide generator burning natural gas. The windows have been sealed and blacked out. The room is quite warm, the air thick and humid, the whole place filled with a pungent smell reminiscent of fresh hay. Like a greenhouse without glass, it feels very still and quiet, except for the sound of water rushing through narrow pipes.
When everything is running smoothly, Dave controls the elements necessary for his plants: air, light, heat, and water. In a closed chamber there is no wind; here a ventilation system provides it, circulating air rich in carbon dioxide. When outdoor temperatures drop too low, Dave uses the CO2 generator on the ceiling–in effect “fertilizing the air.” Pumps and timers automatically water the plants, also delivering nutrients such as nitrogen, phosphorus, and potassium, which would normally be derived from soil. One of the critical factors in growing marijuana is the proportion of darkness to light. Sometimes Dave’s high-pressure sodium lights burn eighteen hours a day, raising the temperature in the grow room to as high as 110 degrees. During the female plant’s reproductive stage there must be long periods of total, uninterrupted darkness. As little as two footcandles of light can disrupt the delicate process by which delta-9-THC accumulates in the buds. Turning on a flashlight at the wrong moment, Dave says, is enough to ruin his plants.
He is truly a connoisseur, growing an expensive strain of marijuana from the northern Hindu Kush. As he describes how some outdoor growers stuff marijuana into plastic garbage bags while it is still wet, he grimaces, like a master vintner appalled by the improper handling of grapes. The buds are very fragile, he says: “You’re trying to coax this mature flower to retain its essence–and then store it and seal it at that instant in time.” His finished product is deep green and aromatic, like some rare, exotic spice.
Growing marijuana indoors requires much more work than cultivating it outdoors. There is also more potential for disaster. A splash of liquid on a hot light will cause it to explode. A broken pipe can flood the room with hundreds of gallons of water. A power outage shuts the whole system down. The nutrient solution, if improperly monitored, can quickly turn too acidic and, as Dave puts it, “give the plants a heart attack.” More common, and yet somehow more surreal, are insect infestations that can harm valuable young plants. Dave has battled spider mites, greenhouse whiteflies, and aphids. Insecticides are not an option in an enclosed room, with a crop that will be smoked. Dave uses biological controls, unleashing hungry young predators upon unwanted bugs. Recently he released thousands of miniature wasps. This is insanity, he thought; but it worked. Inside a nearby refrigerator he always keeps 500 ladybug eggs, next to the soda, in case of an emergency. At the moment Dave is contending with gnats, who leave his plants alone but swarm and bite him as he walks about the grow room in the dark.
Someone At The Door
ON March 18, 1990, a pair of deputy sheriffs in Johnson County, Indiana, spotted a red Jeep being driven erratically and signaled for its driver to pull off the road. Behind the wheel they found Jerry Montgomery, obviously intoxicated; littering the truck were three empty vodka bottles, a five-gallon bucket full of marijuana, and a gray box containing more than $13,000 in cash. After obtaining a warrant, sheriffs searched Montgomery’s house, finding more marijuana and a locked briefcase hidden under his bed. Deputy John Myers pried it open with a screwdriver. In the briefcase were receipts for farm equipment; documents mentioning R.P.Z. Investments, Claude Atkinson, and Ernest Montgomery; an option to buy a property owned by Martha Brummett; and a number of books suggesting that this arrest was the beginning, not the end, of a trail: Indoor Marijuana Horticulture, The Primo Plant, and How to Grow Marijuana Indoors Under Lights.
The investigation eventually led authorities to a 500-acre farm close to Solsberry, in Greene County, owned by Arno Zepp, of Investment Holdings, Inc. On August 22 federal, state, and local law-enforcement agents arrested Claude Atkinson, raided the farm, and, with the help of volunteers from the Indiana National Guard, destroyed 10,000 marijuana plants. Atkinson soon began to talk. In May of 1991 Ernest Montgomery was arrested at his Gosport cabin, where 7,000 marijuana seedlings sat in little pots, ready for planting. Early that same morning Mark Young was awakened by someone at the front door. Unlike his former business associates, Young was not growing anything. He and his girlfriend, Patricia, were in the process of moving to Florida. When he saw a man with a badge and a gun, Young had no idea what was happening, but assumed that it must have something to do with unpaid taxes.
More than a dozen law-enforcement officers surrounded the house. Their commander, a DEA agent, treated Young politely, allowing him to get dressed and agreeing not to handcuff him in front of the neighbors. At the station Young read his indictment. He was being charged, under federal law, not only for his role in distributing 700 pounds of marijuana but also for conspiring to manufacture all 12,500 marijuana plants grown on Martha Brummett’s farm. Young was unaware of the punishment he might face until later that day. John Hollywood, a bail bondsman in Indianapolis, arrived in the afternoon to secure his release. But the government refused to set bail. Under Indiana’s strict state law, the same charges would bring a maximum sentence of twenty-eight years–at most, fourteen years served in prison, and probably much less. But under federal law Young’s two prior state felony convictions, one of them more than seventeen years old, classified him as a career drug offender. This arrest could prove his third strike. At the U.S. attorney’s discretion, he faced a possible mandatory-minimum sentence of life imprisonment without possibility of parole.
During the 1980s criminal penalties for marijuana offenses were made much tougher, at both the state and federal levels. More resources were devoted to their enforcement. And punishments more severe than those administered during the “reefer madness” of the 1930s became routine. As a result there may be more people in prison today for violating marijuana laws than at any other time in the nation’s history.
Mark Young is one of those prisoners. In May of 1991 Young was arrested at his Indianapolis home for brokering the sale of 700 pounds of marijuana grown on a farm in nearby Morgan County. He had never before been charged with drug trafficking. He had no history of violent crime. His two prior felony convictions–one for attempting to fill a false prescription, the other for possession of a few Quaaludes and amphetamines–were more than a decade old. For each of these convictions he had received a suspended sentence and a one-dollar fine. Young’s role in the marijuana transaction had been that of a middleman. He never handled either the marijuana or the money. He had simply introduced two partners in a marijuana farm, Claude Atkinson and Ernest Montgomery, to a couple of men from Florida who were acting on behalf of a New York buyer. Under federal law Young was charged with “conspiracy to manufacture” marijuana and was held liable for the cultivation of all 12,500 marijuana plants grown on the Morgan County farm. The U.S. attorney now had the option of filing for an “enhancement,” owing to Young’s prior drug felonies; this would trigger a mandatory-minimum sentence upon conviction. After being denied bail, Mark Young learned that his marijuana offense could lead to a mandatory sentence of life imprisonment without the chance of parole. His case helps shed light not only on a quiet revolution in the realm of marijuana laws but also on the often perverse consequences of mandatory-minimum sentences.
The New Rules
THERE have been mandatory-minimum sentences in the United States since the days of the first Congress, most of them adopted to punish narrowly defined crimes. A number of the old mandatory minimums are still on the books, for offenses such as “robbery by pirates” (1790) and “practice of pharmacy and sale of poisons in China” (1915). The overwhelming majority of criminal laws passed by Congress specify only a maximum sentence. It has historically been the role of a federal judge to determine whether a convicted offender deserves that maximum, a lesser sentence, or no prison sentence at all. Until seven years ago a federal judge had great leeway in choosing sentences: Congress set only the upper limits, thereby protecting citizens from excessive punishment. Parole boards served as another brake on unduly harsh sentences, deciding when prisoners merited early release.
The first broadly defined mandatory minimums were contained in the Boggs Act, which was passed at the height of the McCarthy era, amid the tensions of the Korean War and domestic fears of Communist subversion. There seemed to be an increase in narcotics use among the young, and lenient judges were thought to be partly to blame. Members of Congress vied to appear tough on drug offenders. Senator Everett Dirksen favored legislation that allowed the death penalty for selling narcotics to minors. Congressman Edwin Arthur Hall advocated giving drug dealers mandatory-minimum sentences of a hundred years. Congressman L. Gary Clemente introduced a bill recommending the death penalty for any violation of the Narcotic Drugs Import and Export Act. The commissioner of the Federal Bureau of Narcotics, Harry J. Anslinger, seemed almost moderate in calling for a mandatory minimum of five years for second offenders, which he assured Congress “would just about dry up the [drug] traffic.” Congress followed his advice and then lengthened the anti-drug mandatory sentences, in 1956. One vocal critic of the new sentencing regime was James V. Bennett, the director of the U.S. Bureau of Prisons, who attributed the passage of such laws to “hysteria.” Thereafter Bennett was followed by FBN agents, who submitted reports on his movements and speeches.
By the late 1960s a widespread consensus had emerged in both political parties that the anti-drug mandatory-minimum sentences were a failure. Members of Congress, federal judges, and even prosecutors found them too severe, unjust, and, worst of all, ineffective at preventing narcotics use. The spread of the 1960s drug culture had hardly been impeded by the existence of mandatory-minimum sentences. In 1970 Congress repealed almost all the mandatory penalties for drug offenders, an act celebrated by, among others, Congressman George Bush, who predicted that these “penal reforms” would “result in better justice and more appropriate sentences.” A movement arose seeking a new means of determining federal sentences. Allowing too little judicial discretion had proved to be unfair, but too much could also lead to inequities: a bank robber in Florida might be given twenty years by a federal judge, whereas a bank robber in California received probation for exactly the same crime. Marvin Frankel, a federal district judge in New York, imagined a system in which a commission of legal experts would set guidelines on how to determine sentences for various crimes, taking into account details of the offender’s criminal history and the nature of the offense.
After long and careful deliberation, the Sentencing Reform Act of 1984 was passed by Congress with overwhelming bipartisan support, creating the United States Sentencing Commission. It seemed a triumph of rational jurisprudence over demagoguery, an experiment in social planning that evoked shades of the Progressive Era, when panels of appointed experts were hailed as the ideal form of government. Judge William W. Wilkins Jr., a former protege of Senator Strom Thurmond and Ronald Reagan’s first appointee to the federal bench, was made chairman of the new commission. In only eighteen months Wilkins and his fellow commissioners devised sentences of varying severity for about 2,000 different federal crimes. These sentencing guidelines took effect in 1987. Under the new rules each federal offense was assigned a numerical value; the judge added or subtracted points in a given case, according to various criteria; and punishment was determined by matching an offender’s total points with a range of applicable sentences listed on a chart. A judge could depart from the guidelines at sentencing, but had to offer an explanation for doing so. The sentence could later be appealed by the defendant–or the prosecutor.
The same Congress that passed the Sentencing Reform Act also included in that very bill mandatory-minimum sentences for drug offenses committed near schools. Two years later the Anti-Drug Abuse Act of 1986 moved away from the deliberate calibrations of the sentencing guidelines by endorsing the blunt instrument of mandatory-minimum sentences for a wide variety of drug offenses. The University of Maryland basketball star Len Bias had just been killed by crack cocaine, and anti-drug sentiment had reached new heights; lawmakers decided once again to send a tough message. Mandatory-minimum sentences, based on the amount of drugs involved in an offense, were set at five years, ten years, and twenty years. Additional mandatory minimums were added later, including what is now known as a “three strikes, you’re out” provision that specified life sentences for repeat drug offenders. During the congressional debates on these mandatory sentences there was little mention of the precedent of failure set by the Boggs Act, or of how the new laws would undermine the sentencing guidelines, or of what the wider effects might be on various aspects of the criminal-justice system, from the initial filing of charges to the ultimate rates of imprisonment. According to one survey, the most commonly cited justification for the harsh new punishments was a desire for retribution, a legal theory nicknamed “just desserts.”
For most of the nation’s first 200 years a convicted man or woman could ask a federal judge for mercy. On the basis of extenuating circumstances, a judge could reduce a prison sentence or waive it altogether. The new mandatory-minimum laws took that power away from the judge and handed it to the prosecutor. A U.S. attorney now has the sole authority to decide whether a mandatory minimum applies in a particular case–that is, whether to frame a charge under such a statute or not. The only way a defendant can be sure of avoiding a mandatory-minimum sentence is to plead guilty and give “substantial assistance” in the prosecution of someone else. The U.S. attorney, not the judge, decides whether the defendant’s cooperation is sufficient to warrant a reduction in sentence. A defendant might cooperate and still not receive a shorter sentence, if the information supplied falls short of expectations. Long mandatory prison terms provide a strong incentive to talk. From the government’s point of view, guilty pleas, accompanied by cooperation, avoid expensive trials and supply valuable evidence. From the defendant’s point of view, the pressure to name others is enormous.
Some federal judges believe that the quality of much testimony in court has diminished; desperate people will say anything to save themselves. An appeal for compassion is now pointless; all that matters is the demand for cooperation. Under such a system the dilemmas often have an elemental quality. This past January in Kansas City, Tora S. Brown–a nineteen-year-old first offender with an eight-month-old daughter–cooperated with the government in a drug case involving PCP but refused to implicate her own mother. Brown was given a ten-year prison sentence without the chance of parole.
“A Sad Day For Everybody”
ASSISTANT U.S. Attorney Donna Eide, in the Southern District of Indiana, offered Mark Young a reduced sentence in return for a guilty plea and his cooperation: forty years without the chance of parole. Kevin McShane, Young’s attorney, thought the offer ridiculous; he wouldn’t accept forty years as a plea bargain in a first-degree-murder case. That remained the government’s only offer from May to September of 1991. Meanwhile, one by one, the other defendants in the conspiracy case “flipped,” agreeing to cooperate.
Claude Atkinson had been facing a mandatory life sentence, the others sentences of ten years to life. By offering cooperation each had received a “cap” on his sentence, an upper limit, of anywhere from eight to thirty-five years. But each could also conceivably walk free, without any prison time. Their sentences would depend on their performances in court, among other things. Young and Ernest Montgomery and his wife, Cindy, were the only remaining defendants who would not plead guilty.
Under the U.S. sentencing guidelines, Mark Young’s marijuana offense warranted a prison term of roughly twenty-two to twenty-seven years. The guidelines would apply in his case unless the U.S. attorney decided to file an enhancement, reflecting Young’s criminal history and requiring the mandatory life sentence. Donna Eide made one last offer: eighteen years, pending cooperation. Young refused it. The government filed its enhancement on the Friday before the trial was to begin. The wheels had been set in motion, and Mark Young had a long weekend in which to make his choice: agree to cooperate or risk spending the rest of his life in prison.
Kevin McShane does not believe that the government really wanted to give his client a life sentence; that sort of threat is now common in the give-and-take of the plea-bargaining process. He does not believe that the government really wanted any information from Mark Young. Claude Atkinson, who knew more than anyone else about the marijuana farm, was talking up a storm. The identities of the New York and Florida buyers would have been of interest to federal authorities in other districts, but it was not clear that Young even knew their real names. On the eve of the trial it seemed that the government simply wanted to avoid a trial. McShane strongly advised Young to accept the offer of eighteen years; with so many potentially hostile witnesses, his chances in court were uncertain–a roll of the dice. Young’s family, which to this point had remained silent on the issue, also urged him to cooperate. His mother visited him in jail and begged. “At the end, when we saw how bad it was, I just really got on him,” she recalls. “‘Please, Mark, do it, do like the rest of them are, don’t do this, don’t end up, you know, with a life sentence, don’t do it. Tell whatever you have to tell, like the rest of them are doing, to save yourself.’ But no way would he do it. No way.”
The day before Mark Young’s trial began, Cindy Montgomery agreed to a plea bargain. The trial was notable for the details it revealed about the marijuana-growing operation, but the outcome never seemed in doubt. McShane thinks that Young’s case was hurt by being tried alongside that of Ernest Montgomery, who had organized the operation. Jerry Montgomery testified against his brother and proved unable, owing to illiteracy, to read his own plea agreement for the jury. Cindy Montgomery testified against her husband. And Claude Atkinson spoke at length about everybody’s criminal activities. The atmosphere at the trial was enlivened by jailhouse rumors that Mark Young not only had threatened the lives of Cindy Montgomery and Claude Atkinson and their families but also had slept with one of the jurors, who was going to thwart any guilty verdict. Young called no witnesses in his own defense. There was no physical evidence linking him to the crime, only testimony by Atkinson and Cindy Montgomery. The jury took just two and a quarter hours to render guilty verdicts on all counts. It had not been informed that a life sentence might apply.
Claude Atkinson was angry to receive a twenty-five-year sentence despite his cooperation. One of the prosecutors later described Atkinson as a “dreamer”; he may have expected to serve only a few years. For a sixty-two-year-old man, a twenty-five-year sentence was tantamount to life in prison. Ernest Montgomery, whose only previous conviction was for disorderly conduct, got thirty-four years without the chance of parole–also, in effect, a life sentence. His brother received eight years, his wife six, and the other defendants sentences ranging from three to ten years in prison. On February 8, 1992, Judge Sarah Evans Barker gave Mark Young a life sentence, as mandated. She also fined him $100, but did not order any of his assets forfeited; he had none, having paid his lawyer with a used car. “Mr. Young, it’s a sad day for everybody in the courtroom,” she said. “That concludes the matter.”
A few years ago a federal judge in Utah, Thomas Green, refused to give two young drug offenders mandatory-minimum sentences of ten years each, ruling that their due-process rights had been violated by the decision to prosecute them under federal law. The same charges under state law probably would have brought prison terms of about two years. Congress, Judge Green observed, had severely curtailed the discretion of federal judges at sentencing, but had placed no similar restrictions on the behavior of law-enforcement officers and U.S. attorneys. As a result, the nation now faced “de facto sentencing by police and prosecutors.” During the Bush Administration, Attorney General Richard Thornburgh did try to limit the freedom of federal prosecutors. He told them to seek the maximum penalty in every drug case, regardless of mitigating circumstances. The so-called Thornburgh Memorandum, still included in the handbooks issued to all U.S. attorneys, instructs them always to pursue conviction on the most serious “readily provable” charge. U.S. attorneys, however, are not obliged to follow that advice. In some parts of the country they have faithfully adhered to the Thornburgh Memorandum. In other parts individual exceptions have been allowed when a sentence seemed particularly cruel. In a few districts U.S. attorneys who oppose mandatory minimums have been collaborating with sympathetic judges, finding ways to help low-level drug offenders avoid long prison terms.
The Supreme Court has upheld federal mandatory minimums whenever they have been challenged on constitutional grounds, consolidating the increase in prosecutorial power. A U.S. attorney wields enormous influence in drug cases by deciding how to frame a charge, what quantity of the drug to include in the charge–and even whether to press federal charges at all. A different prosecutor might have charged Mark Young only with drug trafficking, likely bringing him a sentence of about seven years. Young’s conviction for “conspiracy to manufacture” all 12,500 plants shows how broadly that crime is now being interpreted. The owners of garden-supply stores have been held legally responsible for marijuana grown by their customers–an application of conspiracy theory similar to that which once imprisoned people for selling sugar to moonshiners. Often the most important factor in determining a sentence is the amount of marijuana involved. Mandatory minimums ignore the defendant’s role in the crime: a “mule” driving a truckload of marijuana can be subject to the same penalty as the person financing the shipment. In fact, defendants with the smallest role in conspiracies often serve the longest sentences, because they have so little information to trade. According to Judge Wilkins, of the U.S. Sentencing Commission, prosecutors do not pursue mandatory minimums in about two thirds of the applicable cases. Their reasoning is not made public. Unlike sentences administered by judges, those derived through plea bargains are settled behind closed doors.
Drug offenses differ from most crimes in being subject to three jurisdictions: local, state, and federal. A U.S. attorney, simply by deciding to enter a particular case, may greatly skew the range of potential punishments. A person may even be tried twice for the same drug crime: found innocent by a state jury, marijuana growers can be–and have been–subsequently convicted in federal court. There are no established criteria for when a U.S. attorney will enter a marijuana case. The federal government could prosecute any and every marijuana offender in America if it so desired, but in a typical year it charges less than two percent of those arrested. In some districts there is a policy that the U.S. attorney will enter cases involving more than a hundred plants or a hundred pounds. In others a federal prosecutor may simply take a special interest in a case. Two years ago Edward Czuprynski, a liberal activist who had long irritated public officials in Bay City, Michigan, was convicted in federal court of possession of 1.6 grams of marijuana: the amount found in a large joint. Under Michigan law he most likely would have received a $100 fine. But in federal court Czuprynski was sentenced to fourteen months in prison. His license to practice law was suspended. His successful law firm closed down. “They busted me completely,” he says, “and that’s what they wanted to do.” After spending almost eight months in prison, Czuprynski was released by order of the Sixth Circuit Court of Appeals, a decision that the U.S. attorney is now seeking to overturn. Considering his legal fees of $40,000, his lost income of ten times that amount, and the untold thousands of dollars the federal government has already spent on his case, Czuprynski says, “That may be the most expensive joint in the nation’s history.”
Four years ago Julie Stewart founded Families Against Mandatory Minimums, a grassroots organization with the motto “Let the Punishment Fit the Crime.” She had not given much thought to America’s drug laws until her older brother was convicted for having grown 375 marijuana seedlings. His sentence was five years. FAMM now has more than 20,000 members, most of them politically active for the first time in their lives. After Mark Young was arrested, his older sister, Andrea Strong, lost three housecleaning jobs in suburban Indianapolis–a sign of the great stigma that marijuana still carries in many parts of the country. Strong is now FAMM’s Midwest coordinator, a self-taught expert on federal criminal law and a tireless campaigner for the repeal of mandatory minimums. FAMM lobbies Congress for sentencing reform and compiles case histories of inmates imprisoned under mandatory-minimum laws. Among them are Michael T. Irish, a first offender sentenced to twelve years in federal prison for helping to unload hashish from a boat; Charles Dunlap, a first offender sentenced to eight years in federal prison for renting a truck used by a friend to import marijuana; and Zodenta McCarter, a sixty-six-year-old woman, a first offender, poor and illiterate, suffering from diabetes, described as “naive, trusting, and childlike in comprehension,” sentenced to eight years in federal prison for conspiring to sell ditchweed (a strain of wild marijuana that is rarely psychoactive). Since being incarcerated McCarter has had a heart attack, been infected with tuberculosis, and endured three operations.
LEAVENWORTH Penitentiary is the oldest prison in the federal system. It may also be the most dangerous. One hundred years ago there were no federal prisons. The roughly 2,500 convicts with federal sentences longer than a year served their time in state facilities scattered across the country. In 1896 Congress appropriated funds for construction of the first federal penitentiary, to be located on more than 1,500 acres in rural Kansas, a few miles from the Army base at Fort Leavenworth. The new prison was built by the convicts who would soon occupy it. In the eighty-eight years since it opened, only one prisoner has ever escaped from Leavenworth and eluded recapture. The red-brick walls, with a gun tower at each corner, are thirty-five feet high and extend an equal distance beneath the ground. The main building is massive, ominous, and redolent of power. It was designed to resemble the U.S. Capitol, converting a symbol of freedom into one of punishment and obedience. On a bleak winter morning, when the grayness of the sky and that of the neighboring fields seem to merge, Leavenworth looks exactly as an inmate described it more than six decades ago: like a “giant mausoleum adrift in a great sea of nothingness.”
To reach the visiting room, you must state your name and purpose to a corrections officer in a small gun tower and then climb stairs to the front entrance. After passing through two electric doors reinforced with steel bars you are photographed; stamped with invisible ink; asked to sign a pledge that you are not bearing firearms, explosives, or narcotics; led through a metal detector; and then escorted through another large door with steel bars. The visiting room looks like a Knights of Columbus meeting hall, with blond-wood paneling, a row of vending machines, and comfortable chairs separated by small tables. There is no glass between inmates and their guests. Visits are supervised by corrections officers who sit on a platform at one end of the room; surveillance cameras are hidden in the ceiling. As I waited to meet Mark Young, a small boy ran up and down the length of the room playing with his father, a bearded inmate in khaki work clothes.
Jonathan Turley, a professor at George Washington University Law School, regards Leavenworth as a perfect microcosm of the federal prison system today: antiquated, often overcrowded, and extremely dangerous both for inmates and for corrections officers. Leavenworth’s rated capacity is about 1,100 prisoners, but at times in the past year it has housed more than 1,600. Overcrowding vastly increases the risk of violence; prison riots become virtually inevitable. The federal system as a whole is operating at about 40 percent above capacity. Some facilities now house two to three times the number of people they were designed to hold, even as the federal prison population increases at a rate of about 10,000 inmates a year.
Tough federal drug laws, strictly enforced, have fueled this unprecedented growth in the federal prison system. The Boggs Act of the 1950s did not have the same effect, because drug offenses were less common and less vigorously prosecuted. As late as 1967 the Federal Bureau of Narcotics had only 300 agents. Its successor, the Drug Enforcement Administration, now has 3,400. During the 1980s annual federal spending to incarcerate drug offenders rose more than 1,300 percent, from $88 million to $1.3 billion. Anti-drug mandatory-minimum sentences and the guideline sentences formulated to mesh neatly with them have transformed the inmate population. In 1970, 16.3 percent of all federal prisoners were drug offenders; today the proportion of federal prisoners who are drug offenders has reached 62 percent. Within three years it should reach 72 percent. Many are first offenders, without so much as a previous arrest, who have been imprisoned for low-level drug violations. Of the 4,244 people convicted last year of violating federal marijuana laws, 56 percent had no criminal record deemed relevant at sentencing. State correctional facilities are also being overwhelmed by drug offenders. The prison systems in forty states are now operating under court order to reduce overcrowding. Violent criminals are sometimes being released early to provide cell space for nonviolent drug offenders whose mandatory sentences do not permit parole. The number of drug offenders imprisoned in America today–about 200,000–is the same as the number of people imprisoned for all crimes in 1970. Since the latest war on drugs began, in 1982, the nation’s prison population has more than doubled. The United States now has the highest rate of incarceration in the world. No society in history has ever imprisoned so many of its own citizens for purposes of crime control.
Mark Young is big–about six foot five, with the build one would expect of an old biker. He has long hair tied in a ponytail. He seems like a hippie version of the country-and-western star Hank Williams Jr., with a gravelly drawl and a deadpan sense of humor. Before being sent to Leavenworth, Young married his longtime girlfriend, Patricia Rowland, in a Native American ceremony at the local jail. Patricia visits him as often as she can, but it is a nine- or ten-hour drive from Indianapolis to Leavenworth, Kansas. She brings him photographs of changes in their neighborhood: new houses, new stores opening at the mall. They discuss how furniture should be rearranged at their rented home; she later moves things around accordingly, and sends him pictures. She does not want him to forget that a familiar world still exists outside the brutal one he now inhabits.
Young had never been in prison before being sentenced to Leavenworth. A marijuana offense usually leads to incarceration at a minimum-security prison or prison camp. But Young’s life sentence labels him as a high risk for attempted escape, requiring that he serve his sentence at a maximum-security penitentiary. Young now finds himself living among some of the most violent repeat offenders in the federal system: murderers, rapists, armed robbers, international terrorists. His two-man cell is eight feet by ten feet, with a solid-metal sliding door and no view of the outdoors, just a window facing the catwalk. A few months after his arrival Young sat in a prison auditorium, packed with inmates, watching Silence of the Lambs. A riot suddenly erupted in the darkness. Prisoners divided by race and tore furniture apart to make weapons. Corrections officers were taken hostage. Amid the chaos Young grabbed a piece of a chair and huddled against the theater wall, terrified. When officers finally quelled the riot, hours later, Young was teargassed, handcuffed, and dragged along the floor through a pool of blood. Because of Young’s size, other inmates have so far left him alone. “But anything can happen here to anyone, at any time,” he told me, snapping his fingers. “Just like that.” Inmates with life sentences and no chance of parole have nothing to lose. Last year a good friend of Young’s, Clyde Harrison, was stabbed to death in the dining room, before hundreds of other people, over a $50 debt. The killer politely handed the knife to a corrections officer, handle first. Young had never witnessed anything like it. His friend died instantly, and then “people were stepping over him to get to the salad bar.”
Young’s trial was such a strange experience that he finds it difficult to describe. One would have to be very stoned, he thinks, to appreciate how absurd it felt. He hardly knew Ernest Montgomery and had met Claude Atkinson only twice, spending a total of less than an hour with him. He had never visited the farm where the marijuana was grown, and to this day does not know its location. Most of the people who testified in court were people whom Young had never laid eyes on before. It makes no sense to him that the law should give him a life sentence for conspiring to cultivate marijuana. Young is quite candid about a lot of socially unacceptable things he has done, and he admits to finding a buyer for the Indiana group, but he ridicules Atkinson’s efforts during the trial to depict him as a major broker, a Paine Webber of pot. The truth, according to Young, is much less dramatic. He was in Florida, fishing with a buddy and sharing a joint. His friend praised the marijuana, which Montgomery had given to Young as a free sample. A few days later the friend called Young and asked if there was any more of “that good stuff.” Young thought there was. His friend then called a friend, who called another friend: a buyer in New York. Young claims that he actually received only a fraction of the $70,000 fee alleged in court. He did not really know either the buyer or the seller. Once the two got together, they did the natural thing–eliminated the middleman. “They cheated me!” Young said, laughing hard.
Although he has always loved to smoke marijuana, Young never thought much about it until coming to prison. Now he is an authority on the subject, a fan of the authors Jack Herer and Chris Conrad, who believe that growing hemp can help protect the environment. The use of its fibers for paper, Young thinks, could save millions of trees, and its distillation into alcohol-based fuels could end the world’s energy shortage. Young is busy in prison designing a Harley Davidson that will run entirely on marijuana–“the Hempster.” Much to his family’s distress, Young was recently sent to “the Hole,” Leavenworth’s disciplinary building, for smoking marijuana in prison. The marijuana at Leavenworth is quite good, though expensive, he says. Most illegal drugs are easily obtained in Leavenworth, including hashish, a rarity elsewhere in the Midwest.
I asked Young the question that had been on my mind for weeks: Why didn’t he cooperate with the prosecutors, when refusing to talk seemed to guarantee a life sentence? “It crossed through my mind a lot, trying to decide,” he said. “But there’s two ways I look at it. I feel kind of proud to have principles. And I’m glad I never lost that. But on the other hand, I can’t really brag too much, because I didn’t have anybody to give them. Who was I going to give them?” I suggested that they just wanted a name, some token of cooperation. The only name Young could provide was that of his fishing buddy; and in the end, he could not do it. “This guy has nothing,” he said. “This guy couldn’t buy half an ounce of marijuana, okay?” Young understands why the other defendants behaved as they did: “When you’re talking the kind of time that they were passing out, you expect anybody to do what they can to fend for themselves.” As for him, “No, I wouldn’t do it any other way.”
The worst thing about Leavenworth, for Young, is the noise, “the constant roar of hundreds of people talking.” His cell offers no escape from it, from voices echoing off the steel and concrete, day and night. Should Young ever be released, the first thing he plans to do is go fishing–“I’m sure now that I’m locked up, the bass have come out.” He feels great bitterness toward his prosecutors. “Someone who’d do what they’re doing is capable of doing anything. . . . They’ve only proved I’m capable of smoking a joint, or of introducing a guy to another guy who needs some pounds. That’s the most they’ve proved me capable of. What they’re doing, they’re destroying these families and passing out life sentences, taking people’s lives, putting children on the street–I mean horrendous acts.” He laughed. “I don’t know of anyone that would do anything that malicious for a salary.” He has no complaints about the corrections officers–men with families, working toward a pension, who daily walk unarmed amid scores of violent inmates. “I wouldn’t take their job for nothing in the world,” he said. “Sometimes I wonder if they realize how bad a situation they’re in–you know, really.” Despite it all, Young expressed a touching faith in the Constitution: “We’re just going through a bad period . . . but I believe the Constitution can whip that.”
When our time was up, a prison official gave Young a friendly tap on the shoulder and said, “Come on, buddy.” Moments later a heavy door closed, and Mark Young was gone.
Dissension in the System
TOM Dawson has a folksy, small-town manner and a cluttered, unpretentious office, both of which disguise the fact that he is a very successful criminal attorney who has been admitted to the bar in every federal circuit. Dawson grew up in the town of Leavenworth, and is arguing Young’s appeal. The issue before the court concerns how much marijuana Young could reasonably have foreseen would be produced by the conspiracy. Dawson and Assistant U.S. Attorney Donna Eide have been sparring over plants and pounds and the proper equation for turning one into the other; at times even the judges on the court of appeals get confused. The dispute might seem worthy of an Abbott and Costello routine if its outcome were not going to determine a man’s fate. The gray-haired Dawson is a lifelong Republican who earns a living representing drug offenders, among others. But he has become profoundly disillusioned with the war on drugs. “It is corrupting everything it touches,” he told me. At sentencing the degree of a defendant’s guilt often seems less important than his willingness to hand over assets and name others. “I’ve had kingpins walk free,” Dawson admitted. In a case handled by another lawyer, a major cocaine dealer with a fleet of Learjets testified against “everybody he ever met,” Dawson said, and served less than four years in prison, despite being caught with 20,000 kilos of cocaine. “It’s just the guy who doesn’t cooperate who then gets everybody else’s time. It’s just the way it works. And they finally will run into some poor guy who says, just like Mark, ‘I’m not going to do it. I’ve got principles.’ Well, then, fine. You take all their time. And that’s really about the way it works.” Guilty pleas are what keep a legal system that is overwhelmed with drug cases functioning. In certain situations, Dawson believes, an innocent person is better off pleading guilty: “If you don’t plead and you bet wrong, the sentences are just too high to serve.”
Anti-drug mandatory-minimum sentences have created dissension in the federal legal system, prompting many judges to seek early retirement. Judge William Schwarzer, the head of the Federal Judicial Center, believes that the nation risks losing some of its best judges. In his view, a lack of respect for the profession, a sentencing process that often reduces judges to the status of adding machines, a staggering backlog of drug cases, and a widespread sentiment that judges are not to be trusted in choosing sentences may all combine to persuade highly qualified people to avoid the bench. Judges were meant to be impartial arbiters; too often now they are merely bystanders, as U.S. attorneys administer punishments chosen by Congress. Perhaps a hundred senior federal judges are currently refusing to hear low-level drug cases prosecuted under mandatory-minimum laws. One of them, Jack B. Weinstein, of New York’s Eastern District, announced his decision with regret, aware that he might be passing the “dirty work” to his colleagues. “I need a rest from the oppressive sense of futility that these drug cases leave,” he wrote in his announcement. “I simply cannot sentence another impoverished person whose destruction has no discernible effect on the drug trade.” Weinstein believes that imprisonment can serve as a deterrent; in court I watched him rebuke corrupt taxi inspectors and insist that their plea bargains include prison terms. It is a question of proportion. In refusing to apply a ten-year mandatory minimum to a poor woman caught smuggling heroin, Weinstein quoted the utilitarian philosopher Jeremy Bentham. “Every particle of real punishment that is produced, more than what is necessary,” Bentham wrote, “is just so much misery run to waste.”
Deborah Daniels was the U.S. attorney in the Southern District of Indiana from 1988 to 1993. She not only supervised Mark Young’s prosecution but also helped set the Justice Department’s sentencing policy during the Bush Administration. “My position as a prosecutor,” she says, “was not to make the laws.” Congress had passed legislation to remove judicial discretion through mandatory minimums and guidelines. The Justice Department decided that it would be wrong for prosecutors “to take over that role as judges.” The laws were to be fully enforced as written. Daniels acknowledges that in some districts assistant U.S. attorneys would “work a case backward,” deciding what punishment a defendant ought to receive and then finding a way to charge for it. “I don’t agree with that. That’s cheating. And we didn’t cheat in the Southern District of Indiana. We played it straight. And that’s how Mark Young got his sentence.” She denies that the threat of long sentences was used mainly to induce plea bargains: “We didn’t do things like that.” The policy of her office was to seek conviction on the most serious readily provable charge–in every case, without exception. “The minute you start saying, Well, gee, that’s kind of severe for this guy and what he did,” she argues, “then you’re deciding what the case is worth.” Daniels believes that Young’s sentence is what Congress mandated for that offense. Many people think it is wrong to give a life sentence when “only marijuana” is involved. Daniels disagrees. The United States cannot discourage other countries from exporting cocaine if it is unwilling to fight an illegal drug produced domestically. “Yes, prisons are expensive,” she admits, “but if we are going to crack down on a serious problem . . . we are going to have to bear the brunt of that.” She does not think the pressure to cooperate has diminished the quality of testimony in court. And what most people don’t realize about U.S. attorneys, she says, is that they spend a good deal of their time getting innocent people out of trouble, by declining to file charges. In Mark Young’s case, all things considered, the system worked exactly as intended.
Last year Attorney General Janet Reno amended the Thornburgh Memorandum, allowing U.S. attorneys to take into account the circumstances in a particular case–a tacit acknowledgment of prosecutorial power. Seeking the maximum sentence is still the policy of the Justice Department, but exceptions can be made. Judith Stewart, the new U.S. attorney in Indiana’s Southern District, has vowed to seek “consistency without mathematical regimentation.” The Clinton Administration, however, does not plan any changes in how the war on drugs is being waged against marijuana. Lee P. Brown, the head of the White House Office of National Drug Control Policy, recently summarized the Administration’s view this way: “Marijuana, as you know, is a controlled substance. Our position is that it should remain a controlled substance. We feel that way because it is a potentially dangerous psychoactive drug, with strong links to medical problems and negative, or at least high-risk, behavior among its users.” Enforcement policies adopted by the two previous Administrations will continue. The crime bills recently passed by both houses of Congress include weak “safety-valve” provisions that will allow judges to waive mandatory-minimum sentences for some low-level first-time drug offenders, who in return must offer full cooperation. The crime bills also specify the death penalty for any marijuana offender caught with 60,000 plants or more.
One of the great ironies of American drug policy is that anti-drug laws over the past century have tended to become most punitive long after the use of a drug has peaked. David Musto, a professor at Yale Medical School and the pre-eminent historian of American narcotics policy, explains that when drug use is at its height, so is tolerance; but as drugs recede from middle-class homes, their users are marginalized, scapegoated, and more readily punished. The price that society pays for harsh sanctions becomes invisible to most people. Musto thinks that our nation’s drug laws reflect cultural changes after the fact; though extreme punishments may help to limit a drug epidemic, the principal causes of its rise and fall lie elsewhere. This theory is supported by recent history. Marijuana use among the young peaked in 1979; strict federal laws were passed seven years later, when use had already fallen by 43 percent; and the explanation most young people gave for quitting marijuana was a concern about the perceived health risks, not fear of imprisonment. A drug culture is once again emerging on college campuses, despite the existence of draconian mandatory minimums. Twelve years after the current war on drugs was declared, some rough numbers may hint at its cost: $30 billion spent so far at the state, federal, and local levels to fight marijuana; two billion dollars’ worth of assets seized in marijuana cases; four million Americans arrested for marijuana offenses; a quarter of a million people convicted of marijuana felonies and sent to prison for at least a year. Statistics can only suggest a portion of the truth. As I learned from the families of inmates, the human costs are not so easily measured.