CARLA CROWDER
News staff writer
March 1, 2004

MONTGOMERY - Alabama spends about $4 million each year to lock up marijuana users who wouldn't see the inside of prison in many states, according to an analysis by the Alabama Sentencing Commission.

The judges, prosecutors and state leaders on the commission agree that Alabama's drug laws need fixing. So far they haven't been able to agree on reforms that might fly with the Legislature and the public.

But they are trying - starting with marijuana, a drug that rarely means prison time in states such as Virginia.

"I can't remember anybody going to jail for pot in the last 15 years," said Richard Trodden, Commonwealth Attorney for Arlington County, Va., referring exclusively to possession cases. Virginia, like Alabama, treats dealers and traffickers much more seriously.

The first conviction for personal-use marijuana is a misdemeanor in Alabama. After that, possession becomes a felony no matter how small the quantity.

About 1,000 people each year are convicted of felony possession, and nearly 40 percent of those are sent to prison, according to Sentencing Commission statistics.

The Legislature created the commission in 2000 to address Alabama's crowded prisons and bring about fairer sentences.

Several judges on the commission say they would prefer smarter options for drug users. Harsh prison sentences punish addicts, but don't appear to be stemming drug use.

"If the deterrent factor would work, would we have as much drug use as we have in this country? Doesn't everybody know how tough the drug laws are in this country? They really do," said Jefferson County District Judge Pete Johnson.

Yet proposals considered this year at commission meetings have met sharp resistance from district attorneys.

A suggestion discussed last month called for raising the quantity for felony possession to more than a pound.

Montgomery County District Attorney Ellen Brooks, who represents Alabama DAs on the commission, doubted lawmakers would pass such a bill, even if the commission was behind it.

"I think going around saying you've got a pound of marijuana and it's a misdemeanor is not going to sell well in Alabama," Brooks said.

Assistant Attorney General Rosa Davis, who represents the attorney general's office on the commission, offered some explanation. Several states surveyed treat personal use marijuana, no matter the quantity, as a misdemeanor. In Virginia, marijuana only rises to felony levels if someone sells it. Nebraska allows seven arrests before its a felony.

As far as legislators approving the pound limit: "I have a feeling they're going to look at this and laugh in my face, but if you look at what's happening around the country, the marijuana sentences are coming down, down, down," Davis said.

Brooks agreed change is needed, but the pound allowance was too drastic. "We're now providing folks with drug diversion, drug court, pre-trial diversion. ... They're getting free bites at the apple," she said. "At some point we've got to recognize that we're dealing with some people who are a threat to society."

Heightening concerns are Alabama's budget crisis and lawsuits over packed prisons. This year, the state doubled the size of the parole board to allow more early releases of non-violent felons.

"We need space in our prisons for folks who are going to do a lot more damage than these folks," Davis said, referring to marijuana users.

Alabama's incarceration rate is the nation's fifth highest. Alabama locked up 612 people per 100,000 residents in 2002. The national incarceration rate was 476 per 100,000 in 2002, the most recent year available, according to the U.S. Department of Justice.

Fifteen percent of the people in Alabama prisons - 4,082 prisoners - are locked up on drug crimes, according to the Alabama Department of Corrections.

Some judges on the Sentencing Commission said penalties for other drugs need changing also, but marijuana is a start.

"I'm in favor of making marijuana possession one time or 10 times a misdemeanor," said Ninth Circuit Judge David Rains, a commission member who's been a judge 23 years in northeast Alabama.

"Sending people to prison is not solving the drug problems. It's just creating an enormous financial burden on the state," Rains said.

That's what other states have decided. Minnesota, though tied with Maine for the lowest incarceration rate at 141 prisoners per 100,000 residents, has been reforming its drug sentences after a jump in the rates of people locked up for drugs.

Even before the change began, possession of small amounts (42.5 grams or less) of marijuana was always a misdemeanor. It took several arrests to get prison for possession, usually in combination with other crimes. Sentencing is on a point system with six points necessary to be considered for prison, said Barb Tombs, director of the Minnesota Sentencing Commission.

She came there from Kansas, after working on reforms there. The first and second drug arrests in Kansas now call for mandatory treatment, not prison, she said.

"It switched from being a prison bed issue to the right thing to do, because all we were doing was cycling these people through the prison system at a very high cost, and not treating the source of the problem," Tombs said.

Shelby County District Attorney Robby Owens said Alabama's laws are appropriate, no matter what other states do.

"The worst problem with marijuana is the fact that if you ride in those circles, cocaine's going to be there, PCPs going to be there, the meth's going to be there," Owens said.

"If you go toward the idea of legalizing marijuana . . . you're going to put more and more kids in harm's way, because we as a society are telling them go ahead and do this because we're not going to do anything to you, and I am opposed to that course of conduct," he said.

Davis said the Sentencing Commission is not considering legalizing marijuana.

"We are looking at how our drug laws compare to other states and the effectiveness of those laws here and in other states. In particular, we are looking at marijuana possession for personal use only," she said. "The commission does not condone the illegal use of marijuana, nor do other states. We can, however, look at the penalties provided in other states and compare them to Alabama and look for the most effective way to protect the public safety."

Common ground:

Judge Johnson doubts the commission can agree on a recommendation this year, despite obvious flaws in current law.

One example: current law makes marijuana possession "for other than personal use" a felony. But it does not name a quantity. A DA in one county could decide three ounces, divided into smaller bags, was a felony. In the next county, eight ounces could be a misdemeanor.

Johnson presides over an innovative drug court that tries to treat addiction with treatment first, instead of prison.

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