I've been told that the percentage of marijuana in prison is a very small
percentage of the total number of people in prison for other drug offenses.
It's a pretty large number, in the sense that, certainly, in the federal system,
about one out of every six federal inmates is in federal prison for marijuana.
That's a very large number. There are more people now in federal prison for
marijuana offenses than for violent offenses. Out of the 1.1 million people in
American prisons, the marijuana offenders are not the majority. But there are a
lot of them. And certainly, at a time when there's a shortage of prison space
and when murderers are serving on average about six years in prison, it seems
absurd to have non-violent marijuana offenders locked up in those large
What kind of marijuana offenders are we talking about?
Most of them are marijuana growers and marijuana dealers, although there are
instances of people being put away for remarkably small amounts of marijuana.
I've come across more than one case of people getting life without parole for a
joint or for less than a joint. They tend to be habitual offenders and that's
their third strike, but that's still a very severe punishment for possessing a
When I started looking into the war on marijuana, I was struck by how similar
it was in a lot of its internal dynamics to the McCarthy era witchhunts, which
I had studied in college. And the deep unreason to it and the hysteria
surrounding it seemed very similar. And what concerned me most was how it
seemed like another scapegoating. This country traditionally has gone thorough
periods of intolerance where we look for scapegoats blame scapegoats and avoid
dealing with our real problems.
And the war on marijuana seemed like a classic example of that national
tendency. So the question that I address myself to in the articles I've written
is how does society come to punish a person more harshly for selling marijuana
than for killing somebody with a gun?
How does that happen?
Under the laws of fifteen states, you can get a life sentence for a nonviolent
marijuana offense. And the average sentence for a convicted murder in this
country is about six years. In the state of California, the average prison
sentence for a convicted killer is about 3.3 years. So that enormous
discrepancy between how violent crimes tend to be treated and how some
nonviolent drug crimes are treated points to a very irrational impulse in this
country to punish when it comes to marijuana.
In terms of the discrepancies between marijuana laws in different states--most
people don't realize that the drug laws of this state operate at the federal,
local and state level so you can be charged under any one of those three types
of laws for a marijuana crime. And the punishment that you're going to receive for
the same crime can vary enormously depending upon what state you're in and who
decided to prosecute you.
For example, in Montana you can get a life sentence for a first offense for
growing one marijuana plant. In New Mexico, which is not far away, you can be
growing ten thousand marijuana plants for a first offense and get a punishment
of no more than three years. Under federal law, you can get the death sentence
for a first-time marijuana offense even if there's no violence involved.
who's caught with 60,000 plants, which seems like a lot of pot, but if you're the
person driving the truck for that conspiracy you may not be the kingpin can be
given the death sentence under federal law.
And what did you come up with, in trying to understand and explain this whole
What I came up with was that the actual properties of the drug really did not
help explain the crusade against it. About 100 years ago, the British colonial
administrators of India became concerned with how much their coolies were
smoking marijuana and conducted a fairly intensive study of marijuana. And they
released what was called the British Hemp Commission Report in 1894 that found
that marijuana was relatively harmless, but that the chief physiological ailment
it caused was bronchitis and a higher incidence of upper respiratory ailments
from inhaling the smoke.
And after a hundred years of scientific studies that have cost millions to
conduct, modern science has basically come to the same conclusion. And last year
the British Medical Journal, The Lancet declared that smoking cannabis, even
long-term, is not harmful to health. Now, it is a very strong intoxicant and
there are all kinds of reasons why young people shouldn't be smoking pot.
But given that hundreds of people died every year in this country from
non-prescription medicines, like aspirin and various antihistamines, and given
that an estimated 300,000 die from tobacco and over 100,000 from alcohol, it
clearly seemed to me that a concern for public health was not behind these
strict punishments for marijuana.
On the contrary, at a time when AIDS patients and cancer patients and
epileptics and people with multiple sclerosis have all been sent to prison for
using marijuana as medicine, it really seemed like the war on marijuana fit into
what has been called the paranoid style of American politics. The need to look
for internal enemies and scapegoats.
Who is the scapegoat? Who is that enemy?
Well, in the 19th century, the Catholics were used as a scapegoat by the
Nothing Party. And in this century, a variety of minorities and non-
conformists and especially immigrants, became the target of various witchhunts.
What's interesting is if you look at origins of the marijuana prohibition in
this country, it coincides with a rise in anti-immigrant sentiment. And
marijuana first appears in the public press and as a source of alarm in
beginning years of this century when there was an upswing in Mexican
immigration. And marijuana became associated with the poor Mexicans in the
United States who used it as their traditional form of intoxication.
And whereas alcohol was seen as an all American form of intoxication. Marijuana
was something alien and dangerous, and was linked to violence and homicide. It
was called the killer weed. And really since the early years of this century,
the war on marijuana has been much more a war on the sort of people who smoke
it, be they Mexicans or blacks or jazz musicians or beatniks or hippies or
hip-hop artists. It's really been a war on nonconformists and the laws against
marijuana have been used as a way of reasserting what are seen as traditional
Tell me about the propaganda of the 1930s against marijuana.
The propaganda of the 1930s against marijuana portrayed it as the killer weed.
This was known as the Reefer Madness period. And marijuana was seen as a treat
to America's youth being pedaled by Mexicans and blacks and jazz musicians, and
it was said to turn the average American youth into a homicidal, suicidal,
sex-crazed, maniac. And even though the propaganda films of those years are
absurd, more people have been punished and imprisoned in the last ten years than
were every actually harmed by the laws passed during the 1930s.
There are also these great shifts historically in our attitude toward
This country goes through periods of tolerance and intolerance. And how
marijuana and users of marijuana have been treated during those periods is just
a reflection of a much bigger social trends. And that's why it was interesting
to me. I think the 1980s, in general, were one of our periods of intolerance and
the slogan, Zero Tolerance, as a plum as it applied to drugs in many ways
described social attitudes in general. There was upswing in
anti-immigrant sentiment and a backlash against women and unions and minorities
and I really think you have to see
the war on marijuana in that context.
Certainly in the 1960s and 1970s, there was a very different attitude towards
how we deal with drug use. Increasingly, it was seen to be a public health
problem, not a problem to be dealt with by the criminal justice system, and
treatment rather than imprisonment was being favored and in the 80s we saw a
return to the old-fashioned attitudes. Harry Anslinger, who was the first head
of the Federal Bureau of Narcotics, really opposed any kind of drug treatment
and his philosophy could be summed up: Lock them up and throw away the key.
So I think in the 1980s, you saw a re-assertion of that philosophy of how we
deal with drug abuse. It's interesting that alcoholism used to be viewed in a
similar way. And alcoholics were sinful, they were evil and we've come a long
way. Now alcoholism is regarded as a disease and people aren't stigmatized.
Unfortunately, drug abusers in this country are considered to be morally
repugnant and evil and that kind of attitude has allowed us to imprison them in
great numbers. And at great costs. And ultimately one of the real problems
with the marijuana polices that we have is how ineffective they have been.
Oddly enough the country in Europe that is considered to be the most liberal
and permissive, which is Sweden, has the lowest rate in Europe of marijuana use.
Far lower than the rate of the United States. They don't have very strict laws
against marijuana. The longest sentence that a marijuana dealer will usually
get is about three years. But what they have is a very consistent public health
approach towards all drug use. And by treating people who are drug abusers as
though they need medical attention and not imprisonment, they've created a
culture and a society that has very low marijuana use.
Some people would argue, however, that the marijuana laws are effective because
the price has gone up.
Well, the rising price of marijuana has been very effective at creating
phenomenally wealthy marijuana dealers and marijuana growers.
But what's remarkable is that, during the last four years of the Clinton
administration, more people have been arrested than in any other four years of
American history for marijuana offenses and more people are in prison than in
any other time in our history for marijuana offenses--hundreds of them for life.
And yet marijuana use is increasing enormously. So I think by any measure the
war on marijuana of the last fifteen years has been a complete failure.
In 1982, when President Reagan launched the war on marijuana, 88% of
American high school seniors said it was easy for them to obtain marijuana. In
1994, 85% said that is was easy for them to obtain marijuana. And during
that period, billions of dollars have been spent fighting marijuana. Millions
of people have been arrested. More than 250,000 have
been sent to prison convicted for marijuana felonies and yet marijuana use is
going up. So I think the high price of marijuana and the high profits being
earned by marijuana dealers is a guarantee that the marijuana use will not
decline because of the phenomenal profits that can be earned growing what's
essentially a weed that will grow very cheaply anywhere.
Explain how mandatory minimums give more power to prosecutors.
Under federal law, buying, selling, possessing or growing marijuana is illegal
everywhere in the United States. And a federal prosecutor can decide whether or
not to charge someone busted for marijuana under a federal law or not. So first
of all, [the] prosecutor has enormous amount of power by deciding whether to charge
you or not. And if you're charged under state law, you might get probation
depending on the state. If you're charged under federal law, you might get a
ten-year sentence. In addition to deciding whether or not to charge you for
the marijuana offense, the prosecutor can decide how much marijuana to include
in the charge, and the amount of drugs is what determines the length of
The prosecutor also decides whether to seek a mandatory minimum sentence if it
applies, and if you're prosecuted for a mandatory minimum sentence, the only way
you can get out of it is by pleading guilty and by giving substantial
assistance to the government in the prosecution of someone else. And it's the
prosecutor and not the judge who decides whether you've given that substantial
assistance. So the mandatory minimum laws transferred the kind of power over
someone's sentence that for generations had belonged to federal judges, to
federal prosecutors. And it resulted in an enormous increase as a result the
power of the state.
And it also encourages informing?
Well, the exemption for those who provide substantial assistance to others puts
a premium on informing as the way to escape punishment and as a result the
United States in the last fifteen years has developed the largest and
wealthiest class of professional informers that it's ever had.
Again, during the McCarthy era, there were a lot of professional informers who
were used to testify before House Committees and in trials about who was or who
wasn't allegedly a subversive. But under the current drug laws informers, not
only can escape a long prison sentence, but they can earn up to 25%
of the assets that are forfeited by the person who's convicted. So we
now have a large number of people who have a direct financial stake in getting
people convicted. And as in the McCarthy era, these professional informers
have shown themselves to be as adept at lying for profit as they have been at
revealing the inner workings of drug gangs.
But, what's wrong if that's what it takes to get offenders in the prison and
Well, one of the great ironies is that at the same time the United States was
winning the Cold War, it was adopting legal mechanisms that had been used for
decades in the former Soviet Union and the Eastern Bloc. And the rise of
prosecutorial power, the increasing reliance on professional informants with a
financial interest in getting people convicted, and the forfeiture laws which
have allowed the government to seize people's assets and seize their houses and
seize their automobiles even if they had no knowledge of the drug crimes that
were being committed on that property, it seems a very high price to pay for
fighting drugs in a war that's still being lost.
Isn't it true though that very often these people are given a chance to plea
bargain, that ... people actually with very long federal prison
terms is relatively minor?
Most of these cases are settled through plea bargain, as are most criminal
cases, but in some of the plea bargaining situations defendants have [been] put in
unusual situations and have to make very difficult choice. I wrote about a
woman who was given the choice of testifying against her husband and receiving a
brief prison sentence or refusing to testifying against her husband and going
to prison for 11 years for a relatively small amount of marijuana.
She chose to go to prison.
Another drug case--a woman was asked to testify against her own mother and
refused to testify against her mother and was sent to prison for ten years as a
result. Now these are extreme measures to get rid of drug use when other
countries have used drug treatment and public health policies and have done a
much better job at reducing drug use.
What are some of the egregious federal cases you have come across or written
about in terms of long prison terms for marijuana?
One of the more interesting cases that I wrote about was the case of Mark Young,
who was a hippie biker in Indiana, a rogue, who was very honest with me about
some of the illegal activities that he had been involved with. But he had a
very minor criminal record. He had been arrested twice on drug offenses--once
for filing a false prescription, once for possessing a couple of quaalude. Both
times he was given a $1 fine and never served a day in jail. And then
he was arrested for serving as a middle man in a large marijuana transaction.
He introduced some people who were growing marijuana to some people who wanted
to buy marijuana and about 700 pounds of marijuana were exchanged in
He was convicted and sentenced to life imprisonment without parole and sent to
Levenworth penitentiary, one of the most dangerous federal prisons in the
country. And I saw in his case a lot of the themes that applied across the
board to the war on marijuana. He was put under enormous pressure to cooperate
with the government and refused to do so, refused to testify against a friend of
his and essentially received life without parole as a result.
But he did win his appeal...
He eventually did win his appeal and his life without parole was reduced to
12 years in prison. But 12 years is a long time in federal prison.
Three or four years is a long time to serve especially for a nonviolent
offense. A three- or four-year sentence is guaranteed to contribute to
the loss of a job, perhaps, the loss of a family and it's a pretty high price to
Why shouldn't he spend at least 12 years in prison? He broke the law,
Well, again, I think that the sentences for marijuana crimes are
disproportionate to the actual harms that are being caused by the drug. The
most widely abused and most deadly drugs in the United States unquestionably
are alcohol and tobacco and if you were to turn on MTV you can see beer ads.
Essentially eighth graders drink alcohol three times more often than they smoke
pot and the difference between how we treat alcohol and how we treat marijuana
is completely a culturally and not a logically based policy.
So it's a question of comparison then?
Well, early in the marijuana prohibition, if you read the anti-marijuana
literature, it's openly racist and it talks about how alcohol is the drug of the
higher races and how marijuana and hashish is the drug of inferior races. And
that kind of cultural prejudice has survived now for decades. So it really
makes no sense to me to give a marijuana a twelve-year sentence at the same
time that the alcohol companies, who are producing a much more dangerous product,
are at the heart of American society.
Who are we arresting then, mostly, for marijuana offenses? Are we scapegoating
In terms of the arrests, there are about 600,000 marijuana
arrests every year and the vast majority of those are for small-time
possession. But there is a higher proportion of minorities who are arrested
and if you were to look at who's actually being imprisoned for marijuana, by and
large, the poor and working class people. Middle class and upper-middle class
offenders who are busted, generally, privately enroll in drug treatment and are
given very light sentences. Certainly the children of high government officials
tend to be treated much more leniently by the courts then do the children of
carpenters and factory workers.
What happens in state prosecutions of marijuana?
Again, it can vary enormously depending upon what state you happen to be in when
you're arrested. Ten states have essentially decriminalized marijuana and if
you're arrested for a small amount, it's like getting a parking ticket. The
most liberal state of all is the state of Ohio where there is a very
conservative governor. In Ohio, up to three ounces of marijuana or an
equivalent of marijuana plants is essentially a parking ticket. On the other
hand, in the state of Nevada, any amount of marijuana is considered a felony and
you can [get] a felony conviction for a single joint, [which] can have a lot of
ramifications for your life, in terms of professional licenses losing your voting
And Oklahoma's a pretty tough state?
Oklahoma is one of the toughest states in terms of their marijuana laws and the
enforcement of their marijuana laws. There's a gentlemen named Larry Jackson in
Oklahoma who received life without parole for .005 tenths of a gram of marijuana
essentially a few flakes of marijuana in a roach. There's another man in
Oklahoma, named James Montgomery, a paraplegic who was arrested with two ounces
of marijuana in the pouch on the back of his wheelchair. He smoked the
marijuana to help him with muscles spasms. It was his first arrest. He was
tried and convicted and given the sentence of life plus 15 years. Oklahoma
and Alabama are two of the worst states in terms of the toughness of their the
length of their marijuana sentences.
Can you talk about the cultural symbolism of marijuana some more?
During the 1960s, marijuana attained enormous symbolic value. It had importance
to the counter culture. It represented a defiance of mainstream America and it
also came to symbolize all the evils of the counter culture. And a lot of the
excesses and permissiveness of that period was blamed on marijuana. The
anti-drug groups that arose in the 1970s and who eventually came to control our
drug policy in the 1980s really held marijuana responsible for everything bad
that had happened in the 60s. And I think the anti-marijuana laws that were
passed in the Reagan-Bush era have to be understood in that context.
The war on marijuana was a cultural war and the plant involved was less
important really than the sort of person who smoked it. In many ways, the urine
tests that have become wide-spread today are a modern equivalent
of the 1950s loyalty oaths. These urine tests cannot measure whether anyone has
been stoned on the job. Because if you smoke marijuana the traces of it can
remain in your urine for weeks. What these tests are assessing is whether
you're the sort of person who smokes marijuana.
And those people, the sort of people who smoke, are being disqualified for
employment by corporations and government agencies around the country. It's
perfectly fine if you've had ten beers, driven drunk, run down the street naked
the night before, but as long as you pass your drug test, you're employable.
Someone who has smoked a joint in their home on a Saturday night and takes that
test a week later can be disqualified for a job. So what we're really talking
about is a cultural conflict. In some ways, it's a conflict between different
generations, but it's also a conflict between different definitions of true
Americanism and this definition of true Americanism in the past has been used
to exclude and punish Mexicans and blacks and it's interesting how music
has played so much into the war on marijuana.
Harry Anslinger, the head of the Federal Bureau of Narcotics, was obsessed with
jazz. He thought jazz music was infecting America's young and corrupting them
and he sought to destroy it at any cost. And he saw a very strong link between
marijuana and jazz, and he tried to start a nationwide round up of jazz
musicians who he hoped to bust for marijuana and therefore rid the nation of
jazz. A generation later jazz had become a mainstream form of American
music and rock 'n roll now was associated with marijuana. And today, it's
rap and hip hop. So the war on marijuana has really been a very
convenient way to strike out at nonconformists and at people who seem to be
posing a threat to mainstream America.
So it encapsulated the opposing side or two visions of America. Who are the two
I guess it's part of a long-running battle in this country between
tolerance and intolerance. And we go through periods of respecting diversity
and we go through periods of doing everything we can to enforce conformity. And
I think that's really where the war on marijuana and the war on drugs, in
particular, seem so important. Now, there are other countries where scapegoating
is part of their culture and certainly the United States is not unique in
seeking to avoid its real problems by looking for scapegoats, but what's
different about this country is that we have a Bill of Rights and a
Constitution and a whole set of beliefs that are supposed to protect minorities
So where are you coming from--are you saying marijuana is good? Are you for
Oddly enough, I don't really care a great deal about marijuana. I'm interested
in the subject mainly because of what it reveals about larger forces and
disturbing forces in this society, a threat to minorities and civil liberties.
I do not believe in the legalization of marijuana. I don't think it's a good
idea to have widespread marijuana use.
At the same time, I think a much more effective drug policy relies on a public
health approach and not on criminal justice approach. Prison cells are a very
scarce commodity. And they are best filled with murderers, rapists and
recidivist violent offenders and not with potheads. I think the greatest
indictment of the policy that we're following is that it hasn't worked and that
marijuana use is going up.
When you say "scapegoating," what are you implying about those who are against
I think many of the people who have been active in the war on drugs are very
well intended and very sincere in their opposition to drug use. At the same
time, I think the intense focus on drug use over the last 15 years and
particularly the obsession with marijuana is a kind of misdirected energy,
scape goating, and a tax on minorities usually occurs in times of economic and
And I think it's significant that since 1973 the annual hourly wages have for
most Americans have been in decline or have been stagnant and I think that the
real problems that this country faces are far more serious and far more
difficult to deal with than the fact that some people are smoking pot. Rather
that's health care, homelessness, the stagnation of wages, these are much more
deeper social problems that are more difficult to handle.
One of the reasons that the war on drugs and the war on marijuana has
succeeded as a political issue is it's very easy for politicians to deal with.
It's very easy to appear soft and it's very easy to appear tough on
drugs. But the consequences appear later. In 1986 when this anti-drug
legislation was passed by Congress, it was a very easy vote to make. Since that
time, it's been a very expensive one in the sense of the prison construction and
the arrests,we spend about @2.5 billion a year just
processing marijuana arrests. So the cost of this policy comes later but for
politicians seeking votes, pot smokers and drugs have been a very easy and
convenient target much as pinkos and Communists were in the 1950s.
So fixing the marijuana problem--that would mean creating a certain vision of
I think fixing the marijuana problem involves lowering the intensity and the
heat of the debate, and trying to look at this drug calmly, rationally and
free of all of the symbolism that it has acquired over the past century.
Twenty-five years ago a commission appointed by Richard Nixon, after studying
marijuana quite intensively, came to the conclusion that it should be
desymbolized and decriminalized. That was essentially the modern Republican
position of 1972. In the years since then, marijuana has been used really as a
way to strike out at the liberalism and permissive of the 1960s and early 70s
and it has not reduced the amount of marijuana being smoked, but it has filled
So do you think we are going to be able to strike out a little new ground?
I think I'm guardedly optimistic in that I feel that the cost of our current
policy is eventually going to be too much to bear. Communities are going to
refuse to build more prisons and as more middle class parents have to
deal with their children being busted for product or finding their children
smoking pot, I think that they will be unwilling to tolerate the sort of
punishments and the sort of laws that have been used for the last 15
years against the poor and working class. In general, as drug use increases to
the point where it affects a larger number of people, they become less likely
to support such punitive policies, because they may have a friend or family
member who is facing a long prison sentence.
INTERVIEWER If we took marijuana out of the illegal drug equation,
wouldn't that sort of undercut some of the justification forthe drug war?
Well, marijuana is the most widely used illegal drug in this country. It's used
more frequently than all other illegal drugs combined. And as a result, the
fundamental justification for the drug war would be greatly reduced. The
justification for urine testing, for drug testing in very large beauracracies
that have been formed in the last 15 years to fight the war on drugs would
be robbed of a great deal of their rational. At the same time, other countries
have worked hard to separate marijuana from more dangerous drugs, such as
cocaine, amphetamine and heroin, and have actually found as a result that
they have much lower rates of those drugs.
So that's one of the reasons there's been so much
resistance to reclassify marijuana?
I think that the war on drugs essentially began as a war on marijuana and once
you've reached a certain size and a certain momentum there were very large and
powerful beauracracies that acquired an interest in perpetuating it and it will
be very difficult, as a result, to change these laws overnight. Nevertheless, the
ending of the Cold War has shown that reason can triumph over large
beauracracies and, hopefully, that will happen with the drug wars.
The Red scare and many other scares, especially if they seem to emanate from
high levels of power in society, tend to be in the service of rallying support
or at least crushing questioning for the Cold War, for instance. What's the
analogous purpose for a drug scare, for a marijuana scare?
Anytime that you have public policy debate turned into a war, you have reason
and rationality fleeing from the debate. During the Red scare and during the
McCarthy era, there really were not a great number of Communists secretly
trying to subvert high school students and college students and the water
supply of the United States. The McCarthy era was in many respects a backlash
against the New Deal and the New Deal liberalism that had become popular, and
it was endorsed by many Democrats and Liberals in the 1950s as a means of
staying in power and attacking the Communists and especially attacking the
subverses at home became a way of inserting your Americanism and also getting
In this country, once the anti-drug forces of the 1970s were brought to power
in the election of Ronald Reagan, the war on drugs became a similar way of
expressing patriotism, of showing your true devotion to Americanism. Just as
in the McCarthy era, many liberal politicians soon led the way in the war on
drugs. The forfeiture statutes are really the work of Senator Joseph Biden. As
I mentioned, Tip O'Neil, Speaker of the House, played a crucial role in the
anti-drug abuse act of 1986 and more people have been arrested for marijuana
in the Clinton administration than in any other administration.
The President of the United States, the President of the United States the
Speaker of the House and at least one Supreme Court justice have all
acknowledged smoking marijuana. But because of the political rituals that are
necessary today, they have to forswear the excesses of their youth and take a
very strong stance against it now. I think the American people are actually
more tolerant, ultimately, than their politicians are, and it will not be a litmus
test for higher office someday to say, "I am not now nor have I ever been a pot
For more of Schlosser's views and reporting on marijuana laws, here are links
to his articles in The Atlantic:
"More Reefer Madness"
"Marijuana and the Law"