A Badge of Honor: Busted on the Boston Common
By Keith Stroup on September 8, 2014
As we approach the annual Boston Freedom Rally in mid-September, held on the historic Boston Common, I thought it might be a good time for me to share with the readers the details of a bust I experienced, along with High Times associate publisher Rick Cusick, for sharing a joint at the combined NORML/High Times booth at the 2007 Freedom Rally.
The reality is that marijuana smokers remain the target of aggressive and misguided law enforcement activities in most states today. They read about the newly-won freedoms in a handful of states, and dream of the day when their state laws will become more tolerant; but they are still being busted in large numbers and have to worry that next knock on the door may be the police with a search warrant, about to destroy their homes and wreck their lives, looking for a little weed.
In fact, 749,825 Americans were arrested on marijuana charges in 2012 (the latest arrest figures that are available), and approximately 87% of those arrests (658,231) were for simple possession for personal use; they were just marijuana smokers, not traffickers. Another marijuana smoker is arrested every 48 seconds in this country!
And for each of these unfortunate souls unfairly caught-up in the criminal justice system, the experience is personally frightening and alienating, even if they manage to avoid a jail sentence (and far too many still go to jail).
But my story is a little different; a story of two old men arrested for sharing a joint at the Freedom Rally, with the court subsequently trying to dismiss the charges, but the defendants demanding to go to trial. For a number of reasons, neither Cusick or I felt any real jeopardy, so we thought we would make the best of a bad situation. We had not wanted to be arrested, but since we had been, it presented an opportunity to challenge Massachusetts’ marijuana laws, with very little risk to ourselves.
First, the bust was no big deal, as it literally involved less than half a joint (I was able to discard the other joint I had in my pocket as the police approached!), and such a small amount of marijuana in Massachusetts is often not even prosecuted.
Second, both Rick and I were old men, even then (the undercover narc, when he approached me to place me under arrest, said “You are old enough you should know better!), unlikely to be penalized harshly by any judge or jury for such a minor offense; and we work for pro-pot institutions where our arrest can be worn as a badge of honor. We did not have to worry about losing our jobs, and wondering how we would support our families.
And most importantly, we had the rare advantage of being represented by a team of bright and committed volunteer attorneys working pro bono, headed by Harvard Professor Charles Nesson, and including NORML Legal Committee attorney Steve Epstein, as well as our world-class expert witness Dr. Lester Grinspoon. So clearly this was not the usual bust in which the person has his career destroyed, gets thrown in jail and has to be bonded out, and has to spend thousands of dollars for lawyers with the hope of avoiding a jail sentence.
When we were busted, the two undercover police came racing towards the back of the NORML/High Times booth, grabbing us and taking us to a holding tent they had erected right on the Boston Common. But once they brought us to the temporary police holding area, where they also were holding a couple of minors, waiting for their parents to pick them up, they began to realize this might be different; they saw our speakers credentials hung around our neck, and ask us who we were. We explained we were there to represent High Times and NORML, and that we were schedule to speak from the main stage within a couple of hours.
You could almost hears their minds working, as they talked privately between themselves, trying to determine how they should proceed. Apparently deciding that taking two of the speakers away in handcuffs might be the basis of unfavorable media coverage from their perspective, within a few minutes they said that they did not wish to interfere with our right to speak at the Freedom Rally. If we promised to quietly leave the park out the backside of their tent, they would simply issue us a a summons to appear at court on a future date, and would permit us to re-enter the park from the other side of the Commons (they did not want anyone to see us being allowed to reenter the park from the police tent), to work at the booth, and to speak as scheduled, so long as they did not catch us with marijuana a second time.
That sounded like an offer too good to turn down, so Rick and I both both proceeded to address the Freedom Rally crowd later that afternoon, protesting the fact that we had just been busted for exercising our First Amendment rights and sharing a joint. It’s fair to say we were both more intense than usual when we spoke, relying on our new victim status to engage the crowd, most of whom were also enjoying marijuana, but had managed not to get picked-out of the crowd.
When the initial hearing came on our combined cases, and the assignment judge learned that the amount of marijuana was so inconsequential, he offered to dismiss the charges, but our legal team insisted that we would not agree to a dismissal, and insisted that we go to trial. And when we were assigned a judge to hear the case, both Rick and I took the stand and, under oath, said, for the record, of course we were smoking marijuana, adding that we were both long-time responsible users and believed there was nothing wrong with the responsible use of marijuana by adults. Those points had no legal significance, but we felt it was important that the record indicate we were taking a principled stand. We were making a political statement when we smoked that joint at the Freedom Rally, which should be protected First Amendment speech. It was an indirect way to argue for the jury to nullify the verdict, without using the forbidden words. Lawyers are not permitted to inform the jurors that they do have this power.
Our hope, obviously, was that at least one of the jurors would refuse to convict us, exercising his/her right of jury nullification, and that the outcome would be reported in the Boston media, alerting all subsequent marijuana defendants that they too should demand a jury trial, and all subsequent jurors that they did in deed have to power to refuse to convict, if they felt a marijuana conviction would be unjust.
When the judge began his jury selection, he asked all the potential jurors if anyone had a problem convicting someone on a marijuana possession charge. When a few of the jurors raised their hands, he advised them that he appreciated their honesty, but he urged them to think about whether they could set aside their personal views, and apply the law. One especially sympathetic juror responded, “Your honor, even if they light up a joint on the stand, I would not vote to convict them”, causing a burst of laughter in the courtroom, but unfortunately for us, that juror was then struck from the jury. If only he had realized the opportunity before him, and kept his views to himself, together we could have struck a blow for personal freedom.
And the remaining jurors apparently had no such qualms, as the jury came back after less than an hour with a guilty verdict against both of us.
The prosecutor, who had insisted all along that he was not interested in putting us in jail, then moved to impose a period of probation (during which we would be subject to drug testing, a likely dead-end for both of us!), but the judge, who understood and appreciated we were mounting a challenge to the fairness and constitutionality of the marijuana laws, ruled there would be no fine, no court costs, and no period of probation. Case closed!
While our legal team continued to appeal the conviction, seeking a ruling the laws were unconstitutional, the appeal was eventually rejected by the MA appellate courts. So both Rick and I picked up a misdemeanor marijuana conviction from this exercise, but otherwise it was an opportunity to challenge the laws, with no real consequences to us. That’s a rare opportunity that few marijuana defendants enjoy.
Massachusetts subsequently decriminalized small amounts of marijuana ($100 civil fine for possession of one ounce or less) and legalized medical use, with the first medical dispensaries scheduled to open within a few months. And there are now two competing groups working to lay plans for a full legalization initiative for 2016. It turns out Rick and I were among the last arrests for minor possession offenses in the state.
So I look forward to the upcoming Boston Freedom Rally both with nostalgia for the past struggles, and optimism for the future of marijuana policy in Massachusetts. I hope to see many of you there as well. Please do drop by the NORML/High Times booth and say hello.
Keith Stroup is a Washington, DC public-interest attorney who founded NORML in 1970. Stroup first smoked marijuana when he was a first-year law student in 1965 and has been a regular smoker and a cannabis activist ever since. In 2012, Keith received the High Times Lifetime Achievement Award. Keith currently serves as NORML’s Legal Counsel and on NORML’s Board of Directors. He resides in Falls Church, Virginia with his wife.