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April 20, 2010

Seeking advice on how best to "celebrate" 4/20 day as a law professor

420_ecard As perhaps many readers may already know, today is so-called 4/20 day , which is described this way on Wikipedia:

April 20 ("4/20" in U.S. date notation) has evolved into a counterculture holiday, where people gather to celebrate and consume cannabis.  In some locations this celebration coincides with Earth Week.  Some events may have a political nature to them, advocating for the decriminalization of non-medical cannabis in the United States.

This webpage at NORML details how this marijuana legalization group is celebrating its favorite day:

[T]his '4/20' celebration in 2010, as is NORML tradition, is a combination of both the serious and silly!

There will be dozens of major 4/20 ‘protestivals’ today from New York City to Seattle, to the expected largest one in the nation I’m speaking at in Denver Colorado.  Major newspaper articles and stories on TV will abound by day’s end. In fact whole television networks such as G4, Comedy Central, Spike and Current TV will devote some or all of their programming today to celebrating cannabis and, implicitly, the herb’s reform.

Also today, NORML launches a new advertisement for 4/20 on Times Square’s largest electronic billboard calling out New York City politicians and law enforcement for having one of the highest — and most racially disparate — cannabis arrest rates in the United States.  The advertisement will run 18 times a day until late May, and will be seen by an expected 1.5 million Times Square visitors.

These protestivals and public celebrations of cannabis culture in North America is a greatly anticipated and celebratory annual event at NORML since the mid 1990s, but the serious political message of this wonderfully creative day (beyond the obvious one of ‘re-legalize cannabis now!’) for this specific year is to direct as much NORML membership and public attention as possible to donate and support the voter initiative on the ballot in California this very November that will effectively legalize cannabis for adult use, cultivation and sales.  Going into our 40th year, NORML’s staff and board of directors have made the passage of California’s voter initiative to legalize cannabis the number #1 political priority for the organization.

As I have suggested in some prior posts, I view the economic and related utilitarian/libertarian argument for legalizing marijuana to be fairly strong these days.  At the very least, I think it important and valuable for serious people in serious settings to have serious conversations about whether and how pot prohibitions should be scaled back.  Thus, I plan to "celebrate" 4/20 day by raising these issues (indirectly) in my Criminal Procedure class this afternoon.  But, as my post title suggests, I welcome other advice concerning how best to mark this day.

Some related older and more recent posts:

April 20, 2010 at 03:14 PM | Permalink

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Celebrate it the best way you can...by lighting some up!! Happy 420

Public Defender (I know surprising!)

Posted by: Cannabis Sativa | Apr 20, 2010 4:40:58 PM

I respectfully suggest that the way for a LAW PROFESSOR to "celbrate" this event is to say the following to his class: "The First Amendment provides you with the opportunity to advocate the legalization of marijuana. You can write your Congressman, write the President, write the newspaper, join a protest, and on and on. The rule of law provides that you must obey democratically enacted statutes until and unless your campaign for change works. So I hope you will not jeopardize you futures as lawyers by engaging in behavior you know to be illegal, thus risking a criminal record."

Posted by: Bill Otis | Apr 20, 2010 5:12:09 PM

Here is a follow up question, Bill, in light of your advice: Do you think many of my upper-middle-class law students would take seriously the assertion that they would "risk[] a criminal record" by lighting up today? I suspect that, just as very few upper-middle-class college students worry about getting a criminal record from sometimes drinking under-age --- I know I didn't when in college --- very few upper-middle-class law students worry about getting a criminal record from sometimes smoking a joint.

That said, there may be other merits to your advice. I just do not think the idle threat of a possible criminal record is what is likely to ensure that this audience is law-abiding in the way you want me to encourage.

Posted by: Doug B. | Apr 20, 2010 5:33:23 PM

Bill: The perpetrators of the Boston Tea Party (the original one) didn’t feel that way.

I think they do know, and require no law school instructor to tell them, that the activity is illegal. This is their way of protesting that fact. As a practical matter, Doug is correct: the risk of a serious blemish on their record, or any blemish at all, is relatively minor.

Posted by: Marc Shepherd | Apr 20, 2010 5:47:41 PM

Doug and Marc --

The original question was how a law professor should tell his students to "celebrate" a day designed to urge legalization of marijuana.

I am quite sure the appropriate answer to that question is NOT, "If you think you'll probably get away with lighting up a joint, feel free." The approriate answer is the one I gave, namely, exercise your First Amendment rights all you wish, but until you prevail, you are required to obey even laws with which you disagree.

To answer more specifically:

Doug: Whether a law student of any social class risks a criminal record by smoking a joint depends mostly on where he does it. If he wants to do it in front of the US Attorney's Office where I used to work, I have bad news for him. If he does it in his bedroom, he's very likely to get away with it.

I'm sure you don't mean to suggest that whether a student should break the law depends on whether he can get away with it. I'm willing to bet a great deal that you wouldn't tell your class any such thing.

P.S. This you can have under oath: In considering whether to prosecute a person for marijuana or any other offense, at no time -- as in zero -- did my colleagues or I ever consider his social or economic class. We considered the evidence, period.

Marc: Those participating in the Boston Tea Party were in rebellion against a law they had no hand in making and could not alter through the process of persuasion and democracy. The legitimacy of resistance to such a law has absolutely nothing in common with a refusal to obey this nation's drug laws, specifically the CSA, which was enacted by a huge bi-partisan vote and has in its 36 years never come close to being repealed.

Is it seriously your view that a citizen of this country is at liberty to flout democratically adopted laws with which he disagrees? If so, what is left of the rule of law? Why not vigilanteism too?

Posted by: Bill Otis | Apr 20, 2010 6:22:07 PM

Bill,

First I enjoy reading your posts on this blog but I got to say that the last three Presidents of our country were OK with indulging with marijuana. Just Saying.

Posted by: Marine | Apr 20, 2010 7:06:58 PM

Marine --

No serious person thinks that having smoked dope in your college years is going to, or should, ruin your life. Similarly, though, no serious person could think a law professor should tell his students that it's OK to smoke dope as long as they think they can get away with it.

A law professor presumably believes in law. If instead a person believes he can do whatever he wants, the law notwithstanding, he ought to be in a different profession.

Posted by: Bill Otis | Apr 20, 2010 8:49:34 PM

I don't think the professor said he would tell his students that's it's OK to smoke dope as long as they think they can get away with it. I just have a difficult time following arguments that are based on assumptions.

Posted by: beth | Apr 20, 2010 9:30:35 PM

beth --

I don't think he did he either, or would. The original question is how SHOULD a professor "celebrate" this event, and that was the question I have been answering.

Posted by: Bill Otis | Apr 20, 2010 9:48:53 PM

I side with Bill Otis. But I'm really, really drunk.

Posted by: Matt | Apr 20, 2010 10:31:55 PM

Fast, pray, bathe the feet of a homeless person. Resolve to candor, disclosure, and penitent apology to the law students. Seriously. Repent the pure evil that you do in law school.

You receive them bright and modern. You send them out crushed, believing in supernatural powers, not even the Medieval Church believed, and you turn them into super dumbasses.

The lawyer dumbass legalizes highly addictive substances that kill 400,000 and 100,000 people a year respectively, and by very rough, slow, agonizing paths to death. The lawyer dumbass prohibits less addictive substances that kill dozens of people a year, most in car crashes.

The American people are living in the Twilight Zone, thanks to the lawyer dumbass.

Posted by: Supremacy Claus | Apr 20, 2010 10:35:48 PM

Matt --

"I side with Bill Otis. But I'm really, really drunk."

On Tuesday night???

Posted by: Bill Otis | Apr 20, 2010 10:50:33 PM

The issue isn't whether prosecutors base charging decision on social/economic class. It is whether police and other law enforcement base investigation/arrest decisions on such factors. While most officers do not do so expressly, enforcement practices end up having the same effect (basically, disparate impact even if not disparate treatment). Officers enforce the law where violations are most visible and evidence easiest to obtain -- i.e., the lower classes, who are more likely to live their lives in semi-public spaces, be on probation (free searches!), lack the power/education to stand up for their civil liberties, etc., etc. It is human nature to go for the low-hanging fruit, but the effects are corrosive to the democratic process, because it allows a portion of the population to support laws that apply fairly harshly to others while they themselves can expect to violate them with impunity.

I have a problem with this.

Posted by: Anon | Apr 21, 2010 12:06:28 PM

Bill, might as well tell the students to stare at the sun or go bungee jumping, either of which would have about as much effect on changing marijuana laws as writing and calling members of Congress.

Forty years of letter writing hasn't moved the issue. The prospect of tax revenue on the other hand does seem to be gaining traction.

Posted by: John K | Apr 21, 2010 4:14:53 PM

John K --

"Forty years of letter writing hasn't moved the issue."

Then it must be a lousy issue.

As for tax revenue changing marijuana laws: I'll bet you $100 here and now that this Congress will make no significant change in the CSA. And if this Congress won't, how likely do you think it is that the next Congress will?

I'll ask you the same question I asked Marc Shepherd: Is it seriously your view that a citizen of this country is at liberty to flout democratically adopted laws with which he disagrees? If so, what is left of the rule of law? Why not vigilanteism too?

Posted by: Bill Otis | Apr 21, 2010 5:30:33 PM

Of course citizens are not at liberty to flout laws with out being arrested prosecuted and imprisoned if they are detected. That is probably why letter writing is only part of the impetus for change.

The real reason marijuana laws will change is that so many citizens have a husband, son, mother, father, brother, sister, friend etc.etc. who have been defendants and prisoners. As the % of incarcerations for marijuana increases, there is more support for legalization.

Posted by: beth | Apr 21, 2010 8:37:12 PM

beth --

I was wondering if you could tell me the likelihood of a person's getting a jail sentence for first time, simple possession of marijuana.

That's not an attempt to start an argument. I'd actually like to know.

I can tell you that in federal district court for the Eastern District of Virginia, not known as a bastion of liberalism, it was zip.

Posted by: Bill Otis | Apr 21, 2010 11:04:34 PM

I know that's a real question. In the federal system jail time for simple possession is probably zip in every District. State and locally it becomes a threshold issue. Things get more complicated when you charge the accountant who did the financial work for a grow operation, or the person who owned the vehicle for delivery - conspiracy is fraught with hazards for ordinary citizens. These hazards are at the very least expensive for them.

I don't feel like arguing either, and will be looking for better and current statistics. I think I saw a new chart in the last month. My main point is that such a large percentage of the population has smoked pot with no significant or any negative consequence in their functioning (I have not by the way) that they are not as alarmed by the drug as they are by the law.

This alarm turns to outrage when marijuana laws make defendants of family members and friends. At the very least, this event is very expensive and if it results in incarceration, it is tragic. This is why I believe that there is such strong and growing support for legalization. There isn't really much to argue about. it will play out one way or the other.

Both sides are doing their best to spin their position, but ultimately the increase in prosecution of marijuana offenses is no doubt what has or will turn the tide, not the rhetoric.

In the mean time everyone will lobby for their position and their chunk of the tax dollar. Medical marijuana advocates want only medical marijuana to be legal so that they will still have their business, mental health people will want the law enforcement dollar to come their way for treatment, and law enforcement will want to expand prohibition - or at least not weaken it.

This will be interesting - I just believe that this is why the tide is turning. The most interesting development is the agreement about marijuana legalization on both sides of the political spectrum. It has morphed in to a Nanny State issue.

Posted by: beth | Apr 22, 2010 10:02:07 AM

beth --

Two or three points:

1. "... such a large percentage of the population has smoked pot with no significant or any negative consequence in their functioning (I have not by the way) that they are not as alarmed by the drug as they are by the law."

My unscientific sense of it is that few people are alarmed by EITHER the drug OR the law.

2. "...At the very least, this event is very expensive and if it results in incarceration, it is tragic. This is why I believe that there is such strong and growing support for legalization."

There might be in some places; nationwide, by a wide margin, the public opposes legalization for recreational use. An AP/CNBC poll taken last week asked, "Do you favor, oppose or neither favor nor oppose legalizing the possession of small amounts of marijuana for personal use?" Result: 34% favored, 55% opposed. A somewhat smaller number, 48%, thought the present costs of enforcing marijuana laws are acceptable (45% disagreed). By 46% to 13%, people thought (correctly according to the medical evidence) that legalization would harm health rather than improve it.

3. "Both sides are doing their best to spin their position, but ultimately the increase in prosecution of marijuana offenses is no doubt what has or will turn the tide, not the rhetoric."

Again, this is where we need more facts. I don't know that there is an increase in the prosecution of marijuana offenses, and if there is, it's very much open to question whether it would "turn the tide." For example, if marijuana prosecutions rose from one percent of the population to one and a-half percent, then, although that could be characterized as A FIFTY PERCENT INCREASE!!!, no tide will be turning. A very small portion of the population facing minor criminal penalties for using an unhealthy drug is not the stuff of which a groundswell is made.

Marijuana tends to get a lot of attention on boards like this, but among the general population, my sense is that it is way, way down the list of topics people think about. Most people don't do marijuana with any frequency at all, if ever; and among those who do, precious few go to jail.

The real reason the CSA stays where it is is that the majority thinks we have about the right balance between the costs of enforcement and the costs of greater drug consumption.

Posted by: Bill Otis | Apr 22, 2010 11:04:02 AM

"Seeking advice on how best to 'celebrate' 4/20 day as a law professor"

I was unaware there was more than one way. :)

Posted by: Gritsforbreakfast | Apr 22, 2010 1:22:05 PM

Well Bill, I agree. If you are right and the majority thinks we have about the right balance between the cost of enforcement and the cost of legalization, the CSA will stay where it is.

My point is that the bar is moving. I think the population is becoming more intolerant of paying for minor or major criminal penalties for marijuana. We will see. It will be delayed by the lobbying of people in the criminal justice system. Some laws seem to be a good idea at the time.

Posted by: beth | Apr 22, 2010 2:34:12 PM

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