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The "Usable
Amount" Controversy
Because the state laws defining the crime of possession all use slightly
differing language, the courts of the various states have reached different
conclusions as to whether or not the government must prove that the defendant
possessed a "usable amount" of marijuana. In some states, the
crime of possession is only committed if the person has a "usable
amount" of marijuana. Other states outlaw possession of any marijuana.
A final group of states altogether fails to address the question of quantity.
As of this writing courts in Arizona, the District of Columbia, Oregon,
and Texas, have interpreted their laws as outlawing possession of a "usable
quantity" of marijuana. These courts theorize that when the legislature
outlawed marijuana possession, it must have intended to target those people
who "pose a danger to society." A person possessing an unusable
amount of marijuana poses no danger and hence should not be labeled a
criminal. These courts also reason that it is not cost effective to prosecute
people who possess unusable or minute amounts of marijuana.
In states requiring a usable amount of marijuana, how much is considered
"usable?" The general trend is that a usable amount requires
a sufficient quantity to smoke in a pipe. A case in Arizona held that
.3 gram of marijuana was a usable amount. A case in Oregon held that six
roaches was a usable amount, and a case in Texas held that a single .
1 gram roach was a usable amount. Also, several courts hold that if the
police actually see the defendant smoking marijuana, a possession conviction
is valid even though the amount of marijuana recovered is less than a
usable amount. Lastly, even in states that require a usable amount, the
prosecution does not need to prove that the amount was actually sufficient
to produce a "narcotic effect," nor need it prove the purity
or potency of the marijuana.
The rule is different in California, Colorado, Connecticut, Florida, Georgia,
Illinois, Maryland, Minnesota, New Jersey, New Mexico, New York, Nevada,
Ohio, and Wisconsin. In these states, the courts have held that possession
of any amount of marijuana (so long as there is enough for a laboratory
to positively identify the substance as marijuana) is sufficient for a
possession conviction. There are cases in several of these states where
"a few minute particles" of marijuana lint in a person's pocket
was sufficient for conviction!
California has recently changed its rule. Prior to 1993, a possession
conviction in California required proof of a usable amount. However, in
1993, the California Supreme Court, for all practical purposes, did away
with California's usable amount requirement. In this case, the California
Supreme Court redefined "usable amount" as anything beyond a
"blackened trace or a useless trace." In other words, any amount
of marijuana, beyond a residue such as might be found on a pipe screen,
now qualifies as a "usable amount" in California. (People v.
Rubacalba [1993] 6 CalAth 62.)
25
Crimes & Punishment
Challenges to the Constitutionality of Possession Laws
Shortly after possession of marijuana was made a crime, many people arrested
for simple possession argued that the anti-marijuana possession laws violated
the federal constitution. Almost every approach was tried and rejected.
For example, it was argued that the laws violated federal constitutional
guarantees to due process and equal protection; that the laws impermissibly
intruded on the fundamental rights of liberty and the pursuit of happiness;
that the laws interfered with the right to possess and use private property;
that the laws were irrational since other, more harmful, substances are
not outlawed; that it was unconstitutional to make the degree of punishment
depend on the quantity of the marijuana possessed; that the laws violated
the First Amendment right to freely exercise religion; that any penalty
for possession of marijuana was cruel and unusual punishment; and that
the laws violated the right to privacy.
The only success occurred in the free-minded state of Alaska, where in
1975 the State Supreme Court held that the right to privacy guaranteed
by the Alaska constitution protected the right of adults to smoke marijuana
in their own homes. (People v. Ravin [1975] 537P2d494.) Freedom reigned
for almost fifteen years. Things changed, however, in 1990 when a group
of anti-marijuana crusaders succeeded in a getting a referendum on the
Alaska ballot that would recriminalize possession of marijuana. To the
dismay of the state's marijuana smokers and many other people concerned
with the erosion of their right to privacy, the referendum passed in 1990,
implementing a punishment of up to 90 days in jail and a $1,000 fine for
possession of even personal use amounts of marijuana.
As of this writing, the legal effect of the Alaska referendum is unclear.
In fact, in 1993, Ketchikan Superior Court Judge, Michael Thompson, declared
the referendum unconstitutional and refused to punish Patrick McNeil,
a logger caught with a single marijuana roach. The Alaska Supreme Court
has yet to decide the issue.
The "Momentary Possession" Defense
In some states, including California, there is one clearly defined situation
in which it is actually legal to possess marijuana. In California it is
legal to possess marijuana if it is possessed "solely for the purpose
of abandonment, disposal, or destruction," and the marijuana was
obtained in order to terminate or prevent illegal possession by another
person.
Clearly, such scenarios seldom form the basis for legal defenses against
marijuana possession. The law was enacted to immunize parents who confiscate
marijuana from their kids, as well as anti-marijuana crusaders who take
another person's marijuana but are arrested before they have had an opportunity
to destroy the confiscated marijuana or turn it over to the police.
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