The Pulse: A rethinking on pot cases

Philadelphia's Seth Williams isn't the only Pennsylvania district attorney getting practical in the prosecution of pot cases. In many counties, if someone gets arrested for possessing a small amount as a first offense, chances are he will not go to jail and will eventually escape the legal system without a record. But how such cases are handled depends on where the person is arrested.

Williams told me last week that when he first proposed an expedited, more lenient form of prosecution for small possession, some thought he was motivated by being the first African American to hold the office. (Councilman James Kenney estimates that 89 percent of those arrested in 2012 for possession were black.) "It had nothing to do with that," Williams said. "We're just being smart on crime, focusing on violent offenders. And we're giving nonviolent offenders a second chance, while dealing with true addiction as a public health issue."

Under Williams' program, offenders caught with up to 30 grams (just over an ounce) are taken to a police district, processed, and preliminarily arraigned. They are required to attend a three-hour drug-abuse class and pay a $200 fine, after which they have no arrest record. Kenney thinks even that process can be reduced, and he's proposing that police issue a traffic-ticket-like summons to an offender.

Philadelphia is not alone. In Pittsburgh, Allegheny County District Attorney Stephen A. Zappala Jr. treats such cases as a summary disorderly conduct. Unlike in Philadelphia, the defendant will have a record of pleading guilty to a summary offense but can get that record expunged after five years.

"As prosecutors, it's important to understand the context of someone's behavior," said Zappala. "I believe that we have created a process in these types of cases that produces the most constructive outcome for all involved."

In Northampton County, and, according to District Attorney John Morganelli, in similarly sized counties such as Bucks, Lehigh, Lackawanna, Luzerne, and Chester, a person with no prior record is subject to Accelerated Rehabilitative Disposition (ARD), a program where he faces minimal probation, no fines, no jail, and expungement of the arrest record upon completion. "There is no one sitting in a Pennsylvania jail for this crime," Morganelli said.

Berks County D.A. John T. Adams also uses ARD, but recommends that legislation be enacted that would permit such offenses to be handled by magisterial district justices instead of Common Pleas Courts, which Adams calls a waste of "valuable time and resources."

Butler County's Richard A. Goldinger said that a conviction for possession in his jurisdiction would result in a criminal record and that "the offender would also have their operating privileges suspended by the Department of Transportation." He was the first of the six D.A.s I canvassed to mention PennDot. "It does not matter if the person is driving," he said. "That law was passed years ago. It is a civil sanction separate and apart from our prosecution that PennDot imposes. The sentencing authority does not order this. It is automatic."

Some counties take that reporting requirement more literally than others. Veteran criminal defense attorney William J. Brennan told me it "absolutely matters" where you get arrested, because ARD is discretionary. A defendant can demand a trial but must request ARD, and counties differ in the standards for accepting defendants into the program.

"Some counties apply it liberally and some don't," Brennan said. He called the Philadelphia approach "visionary," adding that "Seth [Williams] and Jim [Kenney] are way ahead of the legislature on this issue."

Williams said ideology and partisanship had nothing to do with the nuanced approaches. He pointed out that Pennsylvania is a state with about one million more Democrats than Republicans, where slightly more than 70 percent of the D.A.s are in the GOP.

"This all came about because I met with my young D.A.s, the ones handling these cases, and they told me about one-third of their work was spent on pot cases where the possession was for a de minimis amount," Williams said. "That was a tremendous waste of taxpayer resources. We still prosecute sellers vigorously. And this has nothing to do with how we treat cocaine, heroin, and methamphetamines."

Dave Freed, the Cumberland County D.A. and president of the Pennsylvania District Attorneys Association, attributed the "creativity" that he and his colleagues use to large caseloads.

"Across the commonwealth, possession of a small amount is appropriately treated as the minor violation that it is," Freed said. "I'd like to see this kind of legislative and political effort and energy spent on combating the epidemic of heroin use, which is the number-one issue right now across the commonwealth, with Philadelphia as a major source city."

Meanwhile, in Harrisburg, State Sen. Daylin Leach (D., Montgomery), a candidate for Congress in the 13th District, is pressing for legalization.

"I have no doubt that most D.A.s view it is a nonserious offense," Leach said, "especially considering the crimes of violence they spend much of their time prosecuting."

Still, Leach worries about "putting about 25,000 Pennsylvania citizens, mostly otherwise law-abiding, into the criminal justice system each year."

"Kids are still being expelled from schools and colleges, and people are still being fired, for marijuana offenses," he said. "Did you know that under Pennsylvania law, if you are convicted of a criminal offense, such as possession of marijuana, you can never work in a public school again for the rest of your life?"