Originally published as an op-ed in the Baltimore Sun
By Susan Goering
March 25, 2013
Last Monday, the United States celebrated the 50th anniversary of the seminal Supreme Court case of Gideon v. Wainwright. The next day saw the Maryland Senate vote to decriminalize the possession of small amounts of marijuana. There is a synchronicity here. The failure of one public policy poses a problem, the other a brilliant solution - if the Maryland House of Delegates will but take up the mantle of common sensibility and fiscal restraint.
For decades, Maryland's heavy penalization of marijuana possession has cost the state millions of dollars in incarceration and court costs and contributed to excessive public defender caseloads without improving public safety or meaningfully reducing drug use.
The public policy behind Gideon is the constitutional guarantee that everyone charged with a crime, no matter how poor, must have a lawyer. But Gideon's legacy - if not its aspirational principle - deserves a cold, hard stare. Amid all the celebratory chatter last week, some commentators justifiably pointed out that the right to competent counsel had become only a paper right.
Why has the constitutional right to counsel become ever more difficult to stay faithful to? Mainly because the "War on Drugs," first announced by President Richard Nixon in 1971, has overwhelmed our system with a tsunami of drug prosecutions, many of them low-level possession cases. The surge of criminal cases on court dockets - and the inability to adequately pay for them, including the costs of competent public defenders - quickly overtook Gideon's aspiration for effective assistance of counsel. State public defenders nationwide have been forced for decades to work under caseloads that are untenable.
In short, the excessive criminalization of drug use, which an increasing number of public policymakers and scholars agree should be treated as a public health problem, has come at a huge cost.
Last week, the Maryland Senate took an important step that would reduce the enormous financial and human toll that the war on drugs exacts on our criminal justice system and the people of Maryland. It voted to approve Senate Bill 297, which would make the use or possession of a small amount of marijuana a civil offense, punishable by a fine not exceeding $100. This would remove small-time marijuana possession from the criminal justice system, saving Maryland an enormous sum of money in police costs, court costs, prosecution costs and defense costs. In 2010, for example, there were 23,663 arrests for marijuana possession in the state - arrests that clogged the system, increased defender caseloads and consumed valuable taxpayer dollars that could have been better spent.
Maryland has one of the highest rates of arrests for marijuana possession in the country. In 2010, Maryland had the seventh-highest number of arrests for marijuana offenses among all states. Marijuana offenses constituted 50 percent of all drug arrests, and marijuana possession accounted for 90 percent of total marijuana arrests.
The Senate's vote was akin to picking the proverbial low-hanging fruit. It is clear that deep and extensive reforms will still be needed. For example, since 1971, the number of human beings incarcerated in lockdown institutions in Maryland has ballooned from 4,950 to 22,500. Shockingly, 45 percent of current inmates are there for nonviolent offenses. Decriminalization of small-time marijuana possession alone will not solve that problem. Yet, the Senate vote is a great step in the right direction that will help stem the flood of low-level cases crushing the public defender system, burdening our budget and destroying lives in the process.
This week, as the Senate bill passes to the Maryland House, all eyes will be on the delegates. It is time for Maryland to stop wasting our limited resources on arresting, prosecuting and incarcerating Marylanders for possession of small amounts of marijuana - all at super-sized costs to the taxpayer and other more fruitful public safety and social programs - and start to restore the promise of Gideon by freeing up overburdened public defenders so they can do their jobs properly.
Susan Goering was the executive director of the ACLU of Maryland.