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How Marijuana Defense Lawyers Helped Make Themselves Obsolete

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D.C. defense attorney Paul Zukerberg has spent decades specializing in drug defense work. Until recently, over half his practice was devoted to marijuana defense. After marijuana was decriminalized in the District, Zukerberg found himself with a lot more time on his hands.

“Basically my phone stopped ringing,” Zukerberg said. “It’s awfully quiet on the marijuana practice, thankfully. I worked hard — along with many other people — to bring decriminalization to the District of Columbia, and it’s had a tremendous positive impact.”

In 2012, Zukerberg ran for the D.C. Council on a decriminalization platform, emphasizing the racial disparities in D.C.’s enforcement of marijuana laws. He only got about 2 percent of the vote, but is often credited with bringing attention to the massive number of marijuana arrests in the District.

“Most people were shocked when they found out so many people were being arrested,” he said. “We were arresting almost 6,000 people a year for marijuana, and were only graduating around 2,800 from all of the high schools in the District of Columbia. So we’re arresting about twice as many people — mostly young people — as we were graduating from high school.”

So we're arresting about twice as many people — mostly young people — as we were graduating from high school. — Paul Zukerberg

Targeting unequal enforcement

Defense attorney Patrice Sulton, legislation chair for the DC Association of Criminal Defense Lawyers, was involved in the decriminalization effort. “People kind of joke about, why am I trying to put myself out of business?” she said. “But I think we're all better off, from a public safety standpoint, when we stop focusing on so many non-violent drug offenses to begin with.”

Sulton helped work on language in the decriminalization statute that prevented police from using the smell of marijuana as a pretext for stopping people.

“It became pretty apparent that a lot of officers were using that as a justification to stop and search people,” she said. “When we combine our anecdotal experience in that regard with the study that the ACLU did in terms of looking at racial disparities in arrest, it was pretty alarming.”

A 2013 ACLU report (pdf) found that African Americans were eight times more likely than whites to be arrested for marijuana use in D.C., even though surveys showed marijuana use for both demographics was about the same.

“It just made it very striking that we have an unequal enforcement problem,” Sulton said. “We have a problem at the contact point with police.”

So she worked to ensure that language in the law alleviated that racial gap at the contact point. That’s what makes the marijuana movement in D.C. so special, she said: “It was done in recognition of the fact that, hey, if you're going to use the law in a way that’s unfair to a group of people, we're not going to have that law anymore.”

The racial disparity in marijuana arrest rates cited in an ACLU report was one of the issues that pushed decriminalization over the goalline in D.C.

Some people think the “next logical step” is looking at decriminalizing other kinds of drugs, but Sulton sees a different goal: “I think that because of the way we've approached this, the next logical step is to look at all of the laws that are being used in a pretextual manner in our city,” she said, pointing to minor traffic offenses only enforced in certain areas of the city, or police “jump outs” that only take place in certain areas.

A spokeswoman for the Metropolitan Police Department said she couldn't provide demographic data on the racial makeup of those who are facing marijuana arrests these days. But according to information provided by MPD and the U.S. Attorney’s Office, marijuana-related arrests have dropped dramatically. In 2014, there were more than 2,600 arrests between January and July 17, when decriminalization went into effect. After July 17, that number dropped to just over 200 for the rest of the year.

Different implementation in Maryland, the District

Before decriminalization even became the law in D.C., some prosecutors took the opportunity to get ahead of the curve. After Maryland lawmakers voted in 2014 to decriminalize marijuana possession, Montgomery County state’s attorney John McCarthy found it “unfair” that the law wouldn’t go into effect for six months. So he gathered his county’s police officers and made a decision.

“I thought it was fundamentally unfair, between April and October, to criminalize behavior when the legislature said that behavior would no longer be criminalized in October,” McCarthy said. “We began to basically decriminalize immediately."

McCarthy even told officers to not charge for paraphernalia. The Maryland legislature “forgot to decriminalize marijuana paraphernalia,” he said. “But it was absolutely apparent to me that paraphernalia was going to be decriminalized.” In the next legislative session, it was.

Montgomery County has long been forgiving on pot: The Intervention Program for Substance Abusers lets first time offenders avoid a criminal record if they get drug education and treatment. McCarthy calls it “de facto” decriminalization — and with the new law, he quickly moved to make it official.

“I just think that we should be putting our resources... into areas that really do protect the public,” McCarthy said. “Look, if you ask me: Aggressively prosecute marijuana cases? Or aggressively prosecute heroin, which is killing people? We had 41 people die in this county over the last two years. I want to save lives. I want to save lives and use those resources to intelligently go after something that is really affecting and destroying the fabrics of families.”

Contacted about life after decriminalization, D.C. attorney Paul Zukerberg responded not with words but with image macros. (Paul Zukerberg)

In D.C., some defense attorneys bristle at what they see as hardball tactics from the U.S. Attorney’s office. Unlike Montgomery County, D.C. continued to prosecute possession cases even after the D.C. Council approved decriminalization. But a spokesman for the U.S. Attorney’s office, Bill Miller, said D.C. prosecutors couldn't just abandon prosecutions, since they didn't know whether Congress would kill the bill. “There was great uncertainty about whether Congress would allow the legislation to become effective,” Miller said in an emailed statement.

So prosecutors there kept bringing charges, and continued prosecuting people in the system. In March the D.C. Court of Appeals ruled that that was OK: Since the decriminalization statute wasn’t retroactive, prosecutors could continue prosecuting possessions as long as the offense was committed before July 17, when Congress’s 60-day review period expired.

Miller said that even before the review period ended, the office offered leniency where it could: “The U.S. Attorney’s Office exercised a greater measure of prosecutorial discretion in a number of ways. We scrutinized potential prosecutions more carefully, expanded eligibility for diversion programs, and asked for more lenient sentences, rarely requesting any jail time.” Diversion programs let some people, like first-time offenders, avoid a criminal conviction on their record.

Rebuilding their practices

Today, attorneys who once specialized in marijuana defense are finding other ways to occupy their time. Rockville attorney Mike Rothman is losing a significant part of his practice. “Really all of my Maryland cases and my D.C. cases for simple possession have virtually disappeared,” he said. But Rothman said he saw it coming. “I had looked at the public polling on positives and negatives on legalization. And I noticed they were inching closer."

Anticipating a sea change in support for marijuana, Rothman started preparing a new specialty. “Medical Cannabis Law Group is a sub-part of my office that works with new businesses to go ahead and apply for licenses to hold and dispense and cultivate medical cannabis,” Rothman said. “There’s going to be more than enough opportunity — business opportunity into the future — for lawyers such as myself who are able to move both within the criminal defense world as well as the business and transactional world."

It’s the end of an era. After decriminalization passed the D.C. Council, Zukerberg posted on his blog, “DC unemployment up by one today — me.” But he says it’s a happy ending to an unfair system he worked hard to fix.

“Marijuana prosecutions and enforcement were racist, and they were always racist,” Zukerberg said. “Finally after 30 years, we’re beginning to see positive changes, and it’s incredible. I didn't think, honestly, that I would see it in my lifetime, but I have. We just have to keep pushing, but it’s a nice career when you could end your career by making yourself obsolete. I think you've accomplished something.”

Zukerberg hopes all marijuana defense lawyers will one day become obsolete — a fitting way, he says, to head into his own retirement.

Music: "Let's Go Get Stoned" by John Scofield, Nickolas Ashford & Valerie Simpson from Jazz Got Soul

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