Should ASO turn a blind eye to people with small amounts of marijuana?
Published: Sunday, July 14, 2013 at 6:01 a.m.
Last Modified: Friday, July 12, 2013 at 5:28 p.m.
Robert “Hutch” Hutchinson says deputies have better things to do with their time than to bust people for having small amounts of marijuana.
* In Florida, possession of 20 grams or less is a misdemeanor punishable by a maximum of up to one year in prison, a $1,000 fine and a loss of a driver's license for two years.
* Possession of more than 20 grams is a felony punishable by up to one year in prison and a $5,000 fine.
* Twenty grams equals 0.70548 ounces. That is enough for about 20 average-sized joints.
* In 2012, Alachua County had 685 cases for misdemeanor possession not associated with another crime. Such cases numbered 819 in 2011 and 715 in 2010.
*Alachua County Commissioner Robert “Hutch” Hutchinson said the Sheriff's Office had 237 misdemeanor cases with four notices to appear rather than arrest in 2012.
*Gainesville Police Department spokesman Officer Ben Tobias said much of the marijuana in Gainesville is grown hydroponically in California and costs $300 to $400 an ounce. Marijuana from Mexico costs about $150 to $200 an ounce.
* In 2011, 18.1 million Americans said they had used pot in the past month, representing about 7 percent of people ages 12 or older, according to the National Institute on Drug Abuse. Marijuana is the most commonly used illicit drug.
* A national poll released in April by the Pew Research Center for People and the Press shows that 52 percent of Americans favor legalizing marijuana.
* Two states -- Washington and Colorado - have legalized recreational use of marijuana. They are among 18 states plus the District of Columbia that have approved marijuana for medical use.
The Alachua County commissioner raised eyebrows at a board retreat last month when he said the Sheriff's Office should stop making such arrests.
To nudge the agency in that direction, Hutchinson suggested that in the coming years the County Commission, which pays the sheriff's budget, should deduct a certain amount for every person put in jail for this offense during the previous year.
His proposal, which if approved would effectively legalize possession of small amounts of pot in areas patrolled by the Sheriff's Office, is believed to be the first of its kind in Florida.
“I came up with it, and here is the reason: If the sheriff is spending that much effort and we are spending that much public money, it is no longer a priority, in my opinion,” Hutchinson said. “My intent is to find places where that money is better spent.”
While the suggestion received a tepid reaction from Hutchinson's colleagues on the County Commission, Sheriff Sadie Darnell did not mince words.
“(Hutchinson) wants to ding my budget. I take that as a threat, and it's definitely an overstep of his authority,” she said. “Pointing fingers at law enforcement as being the bad guys in this situation is not fair.”
Darnell, who said she smoked marijuana herself as a college student, acknowledged that may be hard to find anyone who has not used pot. But she said she doesn't get to pick which laws her deputies enforce.
“Law enforcement should not be the ones making the decision in the field that this should no longer be a crime,” she said. “We have to enforce the laws until the laws are changed.”
The county's top prosecutor, who said he has not heard of any initiative in Florida similar to what Hutchinson is suggesting, said changes to marijuana laws might be coming.
“I have not seen any move (in Florida) … to outright legalize it like in Washington and Colorado, but I think at some point it is inevitable that someone will try to introduce that,” 8th Circuit State Attorney Bill Cervone said.
There are efforts underway now to put a Florida constitutional amendment on the 2014 ballot to allow for use of marijuana for medicinal purposes, similar to measures that have been approved elsewhere around the country. Past attempts to get a ballot initiative or to get legislative approval for medical marijuana use have failed in Florida. Hutchinson's proposal is not connected to the medical marijuana debate.
Advocates of changing marijuana laws often cite the impacts these cases have on an already overburdened legal system.
In Florida, possession of 20 grams (three-quarters of an ounce) or less of marijuana is a misdemeanor. Possession of more than 20 grams is a felony. In 2012, Cervone's office handled 8,800 misdemeanor cases, 685 of which were for marijuana possession. Prosecutors had 819 marijuana cases in 2011 and 715 in 2010.
The impact of these arrests goes much deeper, officials said.
“The bottom line for me is, it's so minor of an offense that it just should be decriminalized if not completely legalized,” Public Defender Stacy Scott said. “The risk to society just doesn't justify all of this time and effort.”
He said he hopes this will open the door to a larger discussion locally about marijuana laws as well as the allocation of limited public resources.
“When I was running this last time, I basically told everybody at every forum … the reason I'm running is that we need to do a better job with mental health counseling, drug treatment, and both of those will deal with the homeless issue as well,'' he said.
“It's an attention getter,'' he said of his proposal, a way to get the discussion started.
“What we are doing is totally wrong-headed. Everybody has bigger fish to fry. This is just crazy,” Hutchinson said.
“With marijuana, it's just a matter of time. It's like the last dude killed in the Vietnam War — how'd you like to be the last person busted and doing time because of a law that you know is going to change? We need to get ahead of it.”
Hutchinson said he just wants deputies essentially to look the other way when they come across someone with a small amount of marijuana.
Cervone said he believes that is already happening.
“I would be shocked if there weren't officers who did confiscate it, have it destroyed and send someone on his way because the time and paperwork involved is more trouble than it's worth,” Cervone said. “Just like many occasions when an open container is poured out on the ground and they are sent on their way with a warning.”
But Darnell pointed out that drug use, on any level, is a cause for concern.
She said ASO is routinely called by residents demanding that deputies crack down on the open sale of marijuana in their neighborhoods.
The agency, she said, cannot ignore those requests.
“Marijuana is classified as an illegal drug. Until that changes, law enforcement, including me as sheriff and the deputies who work for me, is going to continue to enforce the laws,” she said.
Law enforcement officers have options when they come upon someone with a small amount of marijuana. They can make an arrest, give the person a notice to appear in court or file a sworn complaint with the State Attorney's Office.
Factors that tilt a case one way or the other include any previous criminal record and the behavior of the suspect.
A recent report by the American Civil Liberties Union said a disproportionate majority of those arrested are minorities.
Law enforcement officers in Alachua County arrest more than six times as many black defendants as white defendants on marijuana charges, although research shows use of the drug is about as common among whites as blacks, the ACLU reported.
But officials here say the cases cut across all demographics. Police say it is not uncommon in Gainesville for University of Florida and Santa Fe College students to be caught.
“It just amazes me that we get people toking in the parking garage. That's how they are getting caught. They are not usually hardened criminals. I don't get Pablo Escobar,” Cervone said, citing the notorious Colombian drug lord. “We will commonly strike a plea bargain.”
At Alachua County Court arraignment one recent morning, a handful of people faced misdemeanor charges of possession of pot and possession of paraphernalia.
Judge David P. Kreider explained the deal: plead guilty or no contest to possession of paraphernalia, pay a fine, and the pot possession charge will be dropped. Plead not guilty to possession of pot and you risk losing your driver's license. In case after case, defendants took the deal.
Among those who accepted the deal was Troy Moorehead Sr. “I didn't want to lose my license,” he said. “I wanted to get it over with, get it behind me.”
Hutchinson said he has seen this sort of deal-making himself during arraignments.
“I heard a judge in open court saying we are working the system and this is better for you, but we are doing it because of these crazy drug laws we have — and prosecutors and the judge just kind of wink at it,” he said.
“The agreement has been worked out between the pros — the judge and public defender — that we have this poor schlub up here, why are we taking away his driver's license for two years because we caught him with a joint? And the person already did 30 or 40 days in jail. No wonder our jail is full.”
It is hardly a surprise that such a unique way of addressing marijuana laws is getting its start in Gainesville. The city has a colorful history with pot.
In the 1970s, Gainesville Green was a connoisseur's favorite variety of weed. When Vietnam veteran Scott Camil was arrested for pot, he literally made a federal case of it — and won.
Cervone, the longtime local prosecutor, noted that pot use crosses all generational and geographic lines in Alachua County. “I think you are as apt to get (university) faculty and staff as you are students, though I would think that faculty and staff are probably a little more discreet,” he said.
The users are not just the local college crowd, he said.
“It's not endemic to Gainesville; it's country people, too, people up in Newberry,'' Cervone said. “Do they belong in jail? No, usually not.”
Studies show that Alachua County marijuana users have plenty of company around the country.
In 2011, 18.1 million Americans had used pot in the past month, representing about 7 percent of people ages 12 or older, according to the National Institute on Drug Abuse.
Use of marijuana increased 5.8 percent from 2007, the institute reported, adding that marijuana is the most commonly used illicit drug.
A national poll released in April by the Pew Research Center for People and the Press shows that 52 percent of Americans favor legalizing marijuana.
“As with many of the changes in opinions about marijuana and its use, the decline in the percentages who think that smoking marijuana is morally wrong has occurred across most demographic and political groups,” the report states.