FIRlnGLlne DOLORES DENMAN, CHARLES MARVIN, EDWARD TOUSSAINT, ROBERT PUGLIA, BURTON SCOTT, ALEX SANDERS

Transcription

1 The copyright laws of the United States (Title 17, U.S. Code) governs the making of photocopies or other reproductions of copyrighted material. If a user makes a request for, or later uses a photocopy or reproduction (including handwritten copies) for purposes in excess of fair use, that user may be liable for copyright infringement. Users are advised to obtain permission from the copyright owner before any re-use of this material. Use of this material is for private, non-commercial, and educational purposes; additional reprints and further distribution is prohibited. Copies are not for resale. All other rights reserved. For further information, contact Director, Hoover Institution Library and Archives, Stanford University, Stanford, CA Board of Trustees of the Leland Stanford Jr. University. 0 FIRlnGLlne HOST: GUESTS: SUBJECT: WILLIAM F. BUCKLEY, JR. DOLORES DENMAN, CHARLES MARVIN, EDWARD TOUSSAINT, ROBERT PUGLIA, BURTON SCOTT, ALEX SANDERS "DRUGS, JUDGES AND JUSTICE: PART III, CALIFORNIA AND MARIJUANA--WHAT NOW?" FIRING LINE is produced and directed by WARREN STEIBEL. This is a transcript of the FIRING LINE program #2622 / 1111, taped in Newport, Rhode Island, November 15, 1996, and telecast later on public television stations. copyright 1996 FIRING LINE Transcript s and videocassettes available through Producer s Incorporated for Television, 2700 Cypress Street, Columbia, SC /

2 MR. BUCKLEY: The plebiscites in California and Arizona on election day tell tantalizing stories about a change in public opinion on how to deal vvith marijuana users. The two states joined in saying that if marijuana is recommended by the physician, the patient can have it and can grow it in his backyard. No one doubts the probability that in California, as in Arizona, not many people are going to go to jail in the future for using marijuana. One question arises: how to reconcile the state laws with the comprehensive federal lavvs that outlavv marijuana. We're fortunate to be in the company of distinguished judges to contemplate that and related questions. Vv e will need to make very brief introductions. I welcome Judge Dolores Denman, presiding justice in New York State's appellate court, sometime general counsel of the Panama Canal Company; Charles.t\1arvin, chief judge of the Second Circuit Court of Appeals in Shreveport, Louisiana, one-time district attorney; John Edward Toussaint, chief judge of the Court of Appeals in Minneapolis, professor on evidence at William l\.1itchell College of Law; Robert Puglia, presiding justice, Court of Appeals, Third Appellate District in California, onetime professor of law at McGeorge School of Law; Burton Scott, associate dean of the National Judicial College, sometime judge of VVisconsin's Court of Appeals; and Alex Sanders, sometime chief judge of the South Carolina Court of Appeals, and now the president of the College of Charleston. Let me ask Judge Puglia from his many years as judge and prosecutor in California, is this plebiscite indicative of a gro\ving impatience by Californians with existing laws on marijuana? MR. PUGLIA: No. I think Proposition 215, which purports to a limited legalization of marijuana use and cultivation, \Vas presented to the people flying false colors, I believe. It was offered as a compassionate measure in order to mal'e available to those who were very seriously ill marijuana on a therapeutic basis to relieve pain. And when one reads the proposition itself, one is struck by the fact that that probably wasn't-- There was another agenda, I think, that influenced and drove the effort, because it is so loosely \vorded that it would seem to me that you are probably correct, that it's going to have an influence for the worse on prosecution for marijuana crimes. I

3 MR. BUCKLEY: Why was I incorrect in saying that it was passed, presumably reflecting impatience \vi.th the existing system. MR. PUGLIA: Because I think people react somewhat differently to a call upon their compassion, to relieve the suffering of people who are seriously ill and in pain. MR. BUCKLEY: But there must have been a thousand editorials published in California newspapers saying exactly what you just finished saying, i.e., that the law is so loosely worded that in effect it's a vade mecum into-- MR PUGLIA: I agree. But we cannot assume that the many millions of voters who went to the polls and approved this, I think, by a relatively small plurality-- MR. BUCKLEY: Can you assume it in Arizona, which is pretty close, where it was two to one? MR. PUGLIA: That people read the editorials, or even that-- MR. BUCKLEY: That was explicitly permissive-- MR. PUGLIA: --or even that-- MR. BUCKLEY: --in Arizona. MR. PUGLIA: --they have read, the voters--or a significant percentage of them--read the text of the proposition itself, which every voter had in hand in the ballot pamphlet, which was mailed out to each voter. It's really very short, as propositions go. Just a relatively few words. MR. BUCKLEY: About 215 or 200? MR. PUGLIA: Pardon? MR. BUCKLEY: Two fifteen or-- MR. PUGLIA: Two fifteen, 215. And my supposition is that very few people read it, and those who voted upon it assumed--and who voted for it 2

4 in the main assumed that it was what it was presented to be: a compassionate measure to allow the use of marijuana, the cultivation of marijuana in very, very limited circumstances. MR. SANDERS: I would have thought the voters of California would have been harder to fool than that, wouldn't you? [laughter] MR. BUCKLEY: I would hope so. Otherwise, they shouldn't be permitted to vote in California, should they? [laughter] MR. SCOTT: I think many of the voters in California probably suffer from the same puzzle that many of the rest of us-- We're puzzled by the fact that the doctor can prescribe many narcotics and many drugs for people who are ill, and why do we single out marijuana as one that they can't prescribe? I think there was a common sense-- You talk to people on the street and they say, When it comes to a doctor prescribing it-- MR. BUCKLEY: Well, that's-- MR. PUGLIA: Well, that's another question though. MR. SCOTT: But I say, I think that was the way it was presented, and that's-- MR. MARVIN: It's not a prescription, as I understand it. This is the authority of the person to cultivate his ovvn marijuana if it's recommended by a doctor. Is that correct? MR. SCOTT: That's right. And they had to put the "recommended" in, as I understand it, because it conflicts with the federal law. It would be a federal crime for the doctor to prescribe it. MR. BUCKLEY: Well, I want to get to that, but first of all, on Judge Marvin's point, surely \Vhat we can anticipate is the kind of free advice by doctors that the abortion people got. When Roe v. Wade-- MR. MARVIN: I think every state has expe1ienced doctors prescribing the speed, the amphetamines, the things like that in great quantities and then 3

5 being convicted for charging these people $I 0 for writing that prescription out when they do 300 or 4,000 a day, and they've done it-- MR. BUCKLEY: Dr. Feelgood and that sort, yes. MR. MARVIN: --and gotten caught for it. MR. BUCKLEY: But okay, let's settle on the federal question. There is a federal law. Now presumably, the solicitor general one of these days is going to be appearing against the California guy and saying, Well, it's okay for the state to decide whether you can sell alcohol; that's okay. But it's not okay for the state to say you can license marijuana. On what authority will such a solicitor general draw? Is there a preemptive federal right in thi s.? MR. PUGLIA: I think that perhaps California does have the authority to authorize this kind of conduct, but of course, it is trumped by federal laws which render possession and cultivation of marijuana a federal crime. And typically-- MR. BUCKLEY: Is this a I 0th Amendment case then--who has authority? MR. PUGLIA: No, typically federal prosecutors don't involve themselves in the prosecution of marijuana cases involving possession at least of relatively small amounts or cultivation of relatively small amounts of marijuana. The question now is whether they will enter into that field, and that's a question, I suppose, for the administration through the Justice Department. MR. BUCKLEY: Yes, but give us some legal advice. [laughter] Or is that illegal in your-- MR. PUGLIA: No. MR. SANDERS: He took an oath not to do that. [laughter] MR. PUGLIA: My advice would be to those who depend upon the recommendation or approval, oral or written--and that's the language of the initiative-- 4

6 MR. BUCKLEY: Circumvents the law? MR. PUGLIA: It circumvents federal law. And one who receives a recommendation from a physician, oral or written, to use marijuana therapeutically to relieve pain, it would seem to me does so at his or her own peril, because the federals can move in and prosecute if they choose to do so. MR. SANDERS: Let's be clear on this though. I think it's more important to move beyond the legalisms of the California vote to the social impact and likely future consequences. I've always felt California-- MR. BUCKLEY: Yes, but shall we just say we don't know? MR. SANDERS: We don't know yet. MR. BUCKLEY: We don't-- Okay, as to between the federal authority-- MR. SANDERS: I can't imagine the federal government-- MR. BUCKLEY: --and California, we don't know. MR. SANDERS: --finding it in its list of priorities, the prosecution for simple possession of marijuana. We haven't done that in 20 years. MR. BUCKLEY: But that's a social judgment, not a legal judgment. MR. SANDERS: Well, that's true. But I've always thought California was a pretty good crystal ball. If you go out to California and you see they're eating avocado pizzas and anchovy hamburgers, [laughter] you can pretty much count on the fact that-- MR. BUCKLEY: I'll happen in Minneapolis. [laughter] MR. SANDERS: --in New York, Minneapolis-- It first comes to New York and Miami, then bounces back to Minneapolis and five or six years after they've stopped doing those things in California [laughter] it comes to South Carolina. [laughter] But you know, people have moved from east to \Vest ever since the wagon trains. Ideas like the weather, moves from west 5

7 to east. And so you can pretty much predict what's going to happen on the east coast and in the country according to what happens to California. Rut not perfectly so. Apparently people who smoke marijuana in California vote. [laughter] That's not a-- MR. BUCKLEY: They may not know who they're voting for. MR. SANDERS: Well, in South Carolina, you know, the marijuana smokers will say, "Yes, man, I'm going to vote. I'm going to do that tomorrow." And you say, Well, the election was yesterday. And he says, Well, I'll do it next year. [laughter] And so you don't get those great plebiscites. And maybe that's why we don't have propositions on our ballots in South Carolina. [laughter] But still, I think it's got to indicate some kind of a trend of thinking. MR. BUCKLEY: Yes. Yes. And that trend may in fact reflect on subjects we've treated earlier, namely a general sense of, goddam it, when somebody is sent up for 18 years for nonviolent drug possession. Okay, so if it is- Then let me ask this: Is this a situation in which the United States has a great deal empirically to profit from the federal systern?--i.e., here is a state- well, actually two states, Arizona and California--in which the circulation of marijuana will be more open. Now if 10 years from now we find out that marijuana consumption is no greater there than it is in a state in which it continues illegal, that tells us something, doesn't it? MR. MARVIN: I think-- MR. BUCKLEY: Are we therefore grateful? MR. MARVIN: --what you're suggesting was the result of the Prohibition days of alcohol, that the federal government had one set of rules, people could make their own wine and beer and things like that. MR. BUCKLEY: I don't think they could--it was in violation of the Volstead Act. MR. MARVIN: Oh yes. You could make wine and beer for your personal consumption during Prohibition. 6

8 MR. SCOTT: I think that was only true in Louisiana. [laughter] MR. BUCKLEY: The Napoleonic laws again. It couldn't be what, more than one-and-a-half percent alcohol, the Volstead Act, was that what it was? MR. MARVIN: I think so, yes. MR. BUCKLEY: In any event, I don't think for that reason it's directly comparable. My reading on this, it was pre-drinking age for me, was that people got sent off to jail for making their own booze. In any event, maldng your own marijuana is extremely easy. But my question is-- MR. SANDERS: Some people find it hard not to do. [laughter] MR. BUCKLEY: Yes, that's right. That's right. That's right. MR. TOUSSAINT: Can I touch on this-- MR. BUCKLEY: I wish you would, yes. MR. TOUSSAINT: --issue of frustration? First of all, in Minnesota we have not headed in the direction of California, nor does there appear to be any vvinds blovving that way. However, the first-time offenders for the use of illegal drugs, either possession or sale, that don't have any--are not committed with a weapon--otherwise those people are diverted out of the system. And the issue includes-- MR. BUCKLEY: They're what? They're what? MR. TOUSSAINT: Diverted out of the system. MR. BUCKLEY: What does that mean? MR. TOUSSAINT: So in other words, they went to-- MR. MARVIN: Informal probation. MR. BUCKLEY: Oh, sorry. 7

9 MR. TOUSSAINT: What we do with that is to try to treat any issues involving chemical dependency, if there are any educational issues we need to try to work with that offender, particularly retraining and/or training, because the majority of those people do not have a high school education. And so our approach is to try to work with that first-time offender to try to mal<.e sure that that first-time offender does not come back within that system. And so we have to identify the perpetrator and to determine from that identification what would be the appropriate sanction. MR. BUCKLEY: You mean the guy who sold him the pot? MR. TOUSSAINT: Either sold or was in possession of it. And that is the direction that we are going in. MR. SCOTT: If I could follow up on that-- MR. BUCKLEY: Yes, sir. MR. SCOTT: --I think that they are looking at this as treating the offenders so they don't repeat rather than punishing them and then stick them back out on the street. And one of the problems with our whole drug policy in the country is that we are caught up in this cycle of, Well, let's make it a heavier crime; well, then that causes the price of marijuana to go up, then more people want to get in the business of selling it and the whole thing feeds on itself. I don't advocate using drugs, and I don't want anybody to misunderstand me. But what I am saying is that we are not addressing the illness. And it was once said--and I love this one--they said that building more prisons to deal with the drug problem is lil<.e building more graveyards to deal with a fatal illness. It's not going to do a thing, and I think that we are-- MR. BUCKLEY: Well, if you're going to put them away, you've got to put them in prison, right? MR. SCOTT: That's true, and there is no question that every judge and every prosecutor, when there is a law that the legislature has passed, tal<.es an oath to uphold it, and I did it and everyone else does it. And if that's going to be the law, then we have to do that. But what I think that we have to do is look back and say, Are we addressing the fatal illness? \i\te 're 8

10 working very hard on filling the prisons and building more prisons, but are we addressing the fatal illness? And I think-- MR. BUCKLEY:. Well, Mr. Toussaint approaches that-- MR. SCOTT: --the Minnesota approach is much better than many of them. MR. TOUSSAINT: That's our approach, because we believe-- First of all, the unemployment becomes apparent because a person does not have either the education and/or the training. They may very well have a chemical dependency issue that needs to be resolved. And a further study of that group of people indicates that they come from a background of either abuse or neglect. So in order to be able to treat that individual, we try to place them either within educational or treatment programs that really address the real pertinent issues that touch the inside or the heart of that person-- MR. SANDERS: What do you do with the nice people? [laughter] MR. TOUSSAINT: Well, most Minnesotans are very nice. MR. SANDERS: Well, I know, but I mean, what do you do about the educated, rich, intelligent person? \!\That do you do about the NFL player? MR. TOUSSAINT: Well, that doesn't-- MR. SANDERS: Counsel him? MR. TOUSSAINT: You may very well be talking about a very small percentage of the people who come within the system, but the majority of people who come within that system fit into that kind of a profile. So our attempt is to try to treat the majority of the people who come within that system where they can be treated that way. Of course, repeat offenders don't necessarily have the opportunity to be diverted out, or people who have the commission of the offense with a weapon do not have that option, although the other aspect of the program is to try to do the training intensively, to bring the person before the court expeditiously, within 36 hours of the offense, so that the trial court judge then can begin to monitor the progress of the treatment. 9

11 MR. BUCKLEY: Yes, sir. MR. PUGLIA: I just think there is a kind of dissonance in talking in the same conversation about marijuana and the laws that we have to control the use and so forth of marijuana, all the while talking about a burgeoning prison population, the necessity to build more prisons. I would warrant that there are very, very, very few people in prison for a marijuana offense, unless that perhaps was the third offense in California after two very serious ones. That isn't the nature of the problem. And then we in California also--and I think in most jurisdictions handle marijuana pretty much like it's handled in Minnesota, as described by Judge Toussaint. We have a diversion program and that's for first-time offenders who are charged with relatively minor marijuana offenses, albeit felonies. Diversion, incidentally, I think is even better than informal probation, because if someone is diverted into a program of treatment, counseling and the like, and completes that program successfully, then the charge is actually dismissed and there is no conviction whatsoever on the record. And that's the way it's handled. In California for a number of years now, possession of up to one ounce of marijuana is punishable by a maximum-- Here's the maximum penalty: a $100 fine. That's it. Now it does constitute a misdemeanor. MR. MARVIN: And in the '60s, it was probably-- Was it then a felony? MR. PUGLIA: Yes, it was. But the trend in respect to marijuana and the penalties for abuse of marijuana, possession and the like, has been downward and not upward. But I would like to make the point-- MR. BUCKLEY: How many smokes do you get from one ounce? Do you happen to know? MR. PUGLIA: How many what? MR. BUCKLEY: Smokes. MR. PUGLIA: Well, 28 plus-- Twenty-five grams and-- Why are you asking me? [laughter] Do I look like I ought to know? MR BUCKLEY: Well, you've established in the last few hours that you know everyt..11.ing. [laughter] I'm asking you as-- 10

12 MR. PUGLIA: Well, thank you very much, but that's one thing I don't know. MR. BUCKLEY: I just wondered whether one ounce mean~ purely a masticatory amount or whether it's enough for your girlfriend, assuming-- MR. PUGLIA: Well, one ounce is plausibly and probably for one's own personal use, although it--. MR. BUCKLEY: One time. MR. PUGLIA: No. MR SCOTI: Oh, no. MR. PUGLIA: Oh no, you can get quite a few tokes off one ounce. MR. BUCKLEY: That was my question. MR. PUGLIA: Quite a few. MR. BUCKLEY: So in other words, it's a realistic figure. MR. PUGLIA: Yes. MR. BUCKLEY: One ounce. MR. PUGLIA: But in California, before-- MR. MARVIN: [laughter] To the extent that any legislature can be realistic. MR. PUGLIA: Before too much is made of the passage of 215, once again, I am not quite sure, but it seems to me it's been within the last 10 years that there was a proposition submitted to the voters in California which was--the proponent of which was NOIUviAL, which is the national organization fo r decriminalization of marijuana, and that proposition was to decriminalize marijuana across the board. And it went down in a resounding defeat. Now that hasn't been all that many years ago, and so I 11

13 do not think that we can say, whatever the effect of this Proposition 215 may be in the event, I don't think we can say that that was the intent of the voters in California who voted favorably, that they were decriminalizing marijuana across the board. MR. BUCKLEY: You know that in Arizona the Proposition 200 they passed had in it a clause saying anybody who is currently in jail for the exclusive crime of having possessed any of these drugs can be let out. On the other hand, if there was any violence attached, the sentence must be larger in the future. Now doesn't that suggest a pretty sophisticated approach to what we have been discussing here for some time? Or is it your judgment that a phrase like that would have simply been unnoticed by the general voter? MR. PUGLIA: Oh, I think that is significant. But that's the Arizona proposition-- MR. BUCKLEY: I know, I know. MR. PUGLIA: --with which I am not familiar. MR. BUCKLEY: But presumably, there isn't that much difference, is there, between the people who live in California and who live in Arizona? MR. PUGLIA: Yes-- MR. BUCKLEY: I mean, we are trying to find out what's going on, [laughter] and what happened in.arizona-- MR. PUGLIA: Well, it may well-- MR. BUCKLEY: --can happen perhaps be refined. MR. PUGLIA: It may well-- If you're suggesting-- MR. MARVIN: What were other drugs on that proposition in Arizona besides marijuana? 12

14 MR. BUCKLEY: That's right. That's right. All of the-- Well, not all of them, but LSD was on there and cocaine-- MR. MARVIN: Amphetamines? MR. BUCKLEY: Amphetamines, right. Well, what I am saying is that there seems to me to be a dissatisfaction with existing drug laws, and California and Arizona are waving that particular flag. MR. PUGLIA: Arizona probably is, yes, given the nature of the proposition. MR. BUCKLEY: And that was two-to-one. Two-to-one in Arizona. MR. PUGLIA: Okay. Two-to-one. Well, all I am saying is that this was not presented to the voters in that way. MR. MARVIN: In California. MR. PUGLIA: In California. The voters were told: We want to simply authorize doctors to per:rrjt the use of marijuana therapeutically for these few conditions, where it would ameliorate pain. That's what the voters were told-- MR. BUCKLEY: They didn't follow the higher-- MR. PUGLIA: --and those compassionate instincts were called upon. And they responded in that way, I think. MR. BUCKLEY: They didn't follow the high standards of the presidential contenders in telling them what it was all about? [laughter] MR. PUGLIA: Well, as a matter of fact, the attorney general of California was publicly opposed to it, the governor, and most public officials, but-- MR. BUCKLEY: Mr. Lungren is a pretty excitable guy, isn't he? MR. PUGLIA: Pardon? 13

15 MR. BUCKLEY: Mr. Lungren is a pretty excitable guy. MR. PUGLIA: Lungren. Mr. Lungren MR. BUCKLEY: Yes. MR. PUGLIA: Yes. More of whom we will hear, I am sure, in the future. Little plug there. [laughter] But they did not have any resources, any money, with which to combat this movement. And I saw somewhere a list of the contributors to the proponents for this proposition. There was a lot of money behind this, and it came from-- MR. BUCKLEY: One point eight million dollars? Is that a lot of money in California? MR. PUGLIA: If you only have-- MR. BUCKLEY: I should thinlc that would get you a middle initial to your name. MR. PUGLIA: If you only have $50,000 with which to counter it, yes. MR. BUCKLEY: But it was certainly fought in the press, wasn't it, Judge? One point eight million dollars gets you--what?--15 minutes of time in one city of California. I'm exaggerating, but not much. MR. PUGLIA: I thought it was more than that. MR. BUCKLEY: Well, that's-- MR SANDERS: Does it strike anybody as ironic that while the public officials are opposed to the proposition and the notion generally, and the legislators are enacting these draconian measures to deal with people who are drug transgressors, at the very same time, the people are voting otherwise? MR. BUCKLEY: Yes, even in Orange County. 14

16 MR. SANDERS: Yes, it looks like a little bit of a failure of the democracy, although I guess public opinion has got to precede public action. MR. BUCKLEY: Yes, except to the extent the public opinion is a formalism, i.e., we think that the people want us to be splashily against marijuana, we wouldn't be really shocked if the continued use of it is authorized. But if that's correct, then the politicians next time around-- MR. SANDERS: Right.!.1 i MR. BUCKLEY: --will change their position, won't they? MR. SANDERS: Well, can't we agree that we are so lucky to have California? If it didn't exist, we'd have to invent it. They're going to show us how to do it or not do it, as the case may be. [laughter] MR. PUGLIA: If we didn't have California, I would have to go back to Ohio. [laughter] MR. BUCKLEY: Thank you, Judge Puglia; thank you, Judge Denman; thank you, gentlemen. I have enjoyed your company very much. 15