Dealers, Detectives and District Attorneys Weighs in on Cannabis Prosecution in Alabama

The man’s phone rang. Someone on the other end wanted to buy a gram of hashish from him (hashish is a condensed product of cannabis with a high concentration of tetrahydrocannabinol, otherwise known as THC).

The man said it’s good. People have been calling him a lot the last few days he said — more than usual.

The low-level marijuana dealer who asked only to be identified by his first name, Miles, lives on Birmingham’s Southside. He said that he occasionally sells hashish when the supply is there.

He is the end of the line for a product he usually gets from a grow operation just outside of Auburn. Since he deals in relatively low amounts, the product Miles typically gets has exchanged hands several times before he sees it.

Miles is a cog in a multi-billion dollar a year industry. He admitted he gets nervous sometimes about the high-stakes legal implications that come with selling cannabis illegally out of his home, “big-time occupational hazards,” he called them. His phone rang again.

One recent example may illustrate those “big-time occupational hazards” Miles referred to. On Sept. 18, Jefferson County narcotics officers arrested Clinton Carl Norwood, 57, of Corner, Alabama, on trafficking charges.

On a tip, Jefferson County narcotics investigators obtained a search warrant and found two pounds of marijuana packaged and stored in a closet, as well as 17 plants.

An estimated $36,000 worth of product was seized, and Norwood now faces a possible three-year prison sentence.

In the first nine months of 2015, there have been 303 marijuana related arrests made by the Jefferson County Sheriff’s Department in the unincorporated portions of the county — 239 arrests for unlawful possession of marijuana in the second degree and 64 for unlawful possession of marijuana in the first degree.

The second-degree charge is a misdemeanor for personal possession. The latter is a felony charge: possession with intent to distribute. A trafficking charge is applied when a person is arrested with more than 2.2 pounds or 1 kilogram.

The number of marijuana related arrests this year in Jefferson County does not reflect the number of trafficking arrests that have been made because marijuana is classified by the federal government as a Schedule-1 drug. All marijuana trafficking arrests are lumped together with the distribution of any of the other Schedule-1 substances, meaning that pot trafficking in Alabama is punished on the same scale as heroin or methamphetamines.

Law enforcement officers said they do not make a distinction either. “That’s the way it’s written in the law, and that’s how we are going to enforce it,” said Sgt. Jack Self with the Jefferson County Sheriff’s Department.

“Some weeks, we will have five major busts, the next month we may only have one. It all depends on the information we get,” Self said. “It’s hard to quantify because we rely heavily on tips and informants for that type of information.”

That’s what happened in Norwood’s case. As reported by WIAT-CBS 42, a survey crew hired by Norwood’s neighbors found 17 potted marijuana plants and alerted officials.

Norwood is currently being held in the Jefferson County Jail with a bond of $250,000. Because the state prosecutes marijuana related trafficking the same as harder drugs, bonds can be high.

The reason: drug traffickers of all stripes often have access to large sums of money, Self said.

“If you got a guy who committed murder and he doesn’t have a job or the ability to access any money, his bond might be less than someone who was trafficking significant amounts of whatever because they have the money and the ability to get out of Dodge,” Self said, adding that a bond is not a punishment. “The bond is set to guarantee the defendant appears in court.”

In Norwood’s case, his bond is nearly seven times more than the value of the marijuana found on his property. Compare that with the bond for convicted child molester James Marshall McCracken, 36, arrested earlier this year after allegedly raping a mentally handicapped woman: McCracken was charged with three counts of second-degree rape, each carrying a bond of $30,000.

As reported by AL.com, “McCracken was convicted of second-degree sexual abuse in 2004. The victims in that case were a 5-year-old boy and an 8-year-old girl. He was arrested again in 2013 for failure to register as a sex offender. He was found guilty on that charge and received a two-year suspended sentence.”

McCracken was able to post bail and was subsequently released on $90,000 while he awaits trial. Meanwhile Norwood, the alleged pot dealer, remains in jail while he waits for his day in court.

Marijuana legalization advocates have decried the mandatory sentencing for marijuana related crimes as a systematic failure in the war on drugs, citing as evidence exploding prison populations nationwide. Law enforcement officials contend they have no choice but to crack down on marijuana-related crimes in states like Alabama that have adopted the federal schedule of controlled substances that labels cannabis as a Schedule-1 drug.

The Fear

Miles has been selling marijuana on and off since high school. He said he started because he liked smoking pot and wanted to have ample supply. Now, he sells small amounts as a way to supplement his income.

“I would say I am less nervous about selling than I was when I was younger. I guess I’m a little smarter about the way I go about it now too,” Miles said. He’s less worried about getting arrested, but he admitted, “It’s still something that doesn’t leave the back of my mind even though I’m not moving a lot of weight.”

It might come as a surprise to some, but Miles doesn’t consider his work to be “dealing drugs.”

“I’m not a drug dealer because there are no drugs here. I don’t [expletive] with any of that,” Miles said, comparing himself to moonshiners during Prohibition. “To me, it’s no different than someone smuggling in big growlers of some high-gravity IPA that isn’t legal to sell in the state.”

Miles, like many end-of-the-line weed dealers, is able to make his money by buying marijuana in bulk — typically an ounce or more, he said — from a larger distributor. He then portions out and sells smaller amounts to end users at a slightly marked up price in order to make a profit.

Most of his customers, Miles explained, buy “eighths,” or 1/8 ounce, for $60.

“The reality is a lot of people just enjoy smoking pot. It’s not something I feel bad about selling. The taste, the good feelings, it really is a lot like the feeling a person may get when drinking a good beer,” Miles continued.

Having never been arrested, Miles said he tries to avoid that by only dealing with close acquaintances. His phone rings for a third time; another person wanting to buy his supply. “Usually I get about three calls a day,” he said. “This must be rush hour.”

While he is not getting rich from dealing small amounts of marijuana, Miles said it’s an easy way to make some extra money.

Despite the best efforts of law enforcement officials, marijuana is still remarkably easy to buy in this area, in large and small quantities alike.

Lt. Matt Davis with the Jefferson County narcotics division said his department does see an uptick in outside grow operations during the summer months, but it’s unrealistic to expect to bust every operation. There are 14 detectives in Davis’ unit who work exclusively against the illegal narcotics trade in Jefferson County.

“If we got an informant who is cooperating and is in contact with us and they know this person, then there are certainly investigative techniques we will use to pursue that person,” Davis said. He did not want to disclose specifics about how they operate.

But in terms of marijuana sales, just how concerned is the Jefferson County Sheriff’s Department? Davis said it is certainly a problem for them, although he acknowledges that marijuana is not as serious as heroin and hard drugs that kill users regularly.

“You certainly have some people that smoke marijuana that are breaking the law by doing so but are not engaged in any other criminal conduct. They’re not selling it. They’re not growing it. But when we come across them, the law says what they are doing is illegal and we have to act accordingly,” Davis explained.

Much like the sale of hard drugs, marijuana distributors deal with large sums of money, Davis said. “It’s a cash-based business. There is violence involved with people ripping each other off or fighting over territory. Just like any other substance being sold, you have a lot of violence involved with the sale of marijuana,” Davis said, although he did not provide data to quantify the amount of violence associated with pot sales.

The Law

On a federal level, during the first term of the Obama administration, there was an uptick in raids on medical marijuana dispensaries. During his 2008 campaign, in an interview with Rolling Stone, Obama said, “I’m not going to be using Justice Department resources to try to circumvent state laws [on medical marijuana].”

Later, after continuing federal raids on dispensaries, primarily in California, the president clarified his comments in another Rolling Stone interview.

“What I specifically said was that we were not going to prioritize prosecutions of persons who are using medical marijuana,” Obama said. “I never made a commitment that somehow we were going to give carte blanche to large-scale producers and operators of marijuana — and the reason is, because it’s against federal law.”

Nationwide, advocacy groups said that despite the Obama administration’s initial crackdown on dispensaries, the federal government is evolving in how it deals with states where marijuana is legal.

“By and large, federal law is much more harsh on marijuana than state laws,” said Evan Nison, the executive director of NORML New Jersey, the New Jersey affiliate for the National Organization for the Reform of Marijuana Laws.

According the Nison, “The Obama administration, in his first four years, saw more raids on medical marijuana dispensaries than all eight years of Bush. Part of it had to do with the fact that it was low hanging fruit. And the [District Attorney] for the Bay Area in California is notoriously tough on these dispensaries.”

Nison believes that after Obama was reelected, the political tone toward marijuana began to shift as more states began to legalize it for both medicinal and recreational use.

Kris Krane, another former executive director of NORML and the founder and chief executive officer of 4Front Advisors, works with marijuana dispensaries, helping them formulate business plans. According to Krane, the Obama administration only went after unregulated dispensaries.

“The feds didn’t raid any of the dispensaries that were licensed by the states. Really, it was a crackdown on the places that weren’t supposed to be doing it,” Krane said.

Krane anticipates that within two years there could be as many as 14 states that change their laws to allow recreational use of marijuana following the highly documented example of Colorado.

Alabama, though, is not one of those states, Krane added.

Birmingham-based attorney Richard Jaffe has represented many people who have been charged with marijuana related crimes. He said that in Alabama, the legal issue he comes across is that different counties handle these crimes differently.

While some prosecution offices in the state require mandatory drug treatments, others do not. In Jefferson County, anyone busted on drug charges is required to go through the TASC program, which drug screens individuals for the time they are given by a judge.

Jaffe, who used to serve on the board of TASC, said that so far it has worked remarkably well. “It puts the focus on recovery, not just with marijuana but with any substance, and I think that is really the way it should be,” he said.

Right now, in Alabama, there are really two ways for a person convicted of a marijuana-related crime to potentially avoid prison, Jaffe explained. “One, they can go through the intensive drug court programs. If they ‘graduate’ the case is dismissed. The other is deferred prosecution, in which you plead guilty and you go through some type of program and they dismiss this.”

However, Jaffe said that not all of Alabama’s counties have the drug court option. “Right now I have a case that could potentially ruin a man’s life over a marijuana charge because this county — and I don’t want to say which one — does not have any kind of program for drug offenders. I would just hate to see the state go through and prosecute this. Nobody wins.”

In Jefferson County, if a person has no prior convictions, “distribution cases then have a non-prison sentence recommendation,” according to Jefferson County District Attorney Brandon Falls. However, because of the federal scheduling of marijuana, first-time heroin distributors also get a non-prison sentence, which Falls called “a terrible thing.”

The Future

It is unclear when, or if, Alabama will pass legislation to legalize the medical use of marijuana. This year, legislation to change the law on medicinal use of marijuana and penalties for possession failed to make it through the legislature during the regular session.

While Alabama does allow for limited access to compounds composed of marijuana derivatives for patients who suffer from seizures, legislators have been opposed to backing any other type of marijuana-related bill.

In states that have legalized medicinal and even recreational use of marijuana, such as Colorado, the boost in tax revenue has been well documented.

After recreational marijuana became legal in Colorado in January 2014, the state put a 28 percent tax on the sale of the plant. During fiscal year 2014, the state collected $70 million in marijuana taxes, compared with the $42 million from alcohol sales, according to Time magazine.

State narcotics officers in Alabama have taken notice in how those changes in places like Colorado have impacted law enforcement agencies. Alabama lawmakers, though, have remained indifferent toward passing marijuana legislation, even in the face of a massive budget shortfall this year.

Concerns over state prison funding led to the development of the bi-partisan Alabama Prison Reform Taskforce in 2014 as a way to reduce corrections spending and minimize recidivism.

According to data gathered by the Public Affairs Research Council of Alabama, in 1995 the Alabama Department of Corrections received $145,579,511 from the state’s general fund, 17 percent of the general fund spending. In 2015, Alabama spent 22 percent of the general fund budget on corrections, totaling $394,281,304, a 171 percent increase over that 20-year period.

The Council of State Governments Justice Center released findings in 2014 that show Alabama prisons are operating at 190 percent occupancy, due in part to mandatory minimum sentencing for drug offenders. To reduce prison overpopulation and achieve 100 percent operational capacity, it would cost the state $840 million in construction costs and $186 million in annual operation costs.

The CSGJC data also show that the increase in incarceration rates in Alabama do not correspond with the decrease in violent crime from 2000 to 2012. During this time Alabama’s incarceration rate rose 18 percent while the rate of violent crime dropped 13 percent. As of 2014, Alabama had the most crowded prison system in the country.

While first-time drug offenders are not the root cause of the exploding prison population, the Alabama Prison Reform Taskforce hopes to alleviate some of the overcrowding by focusing on rehabilitation efforts as opposed to incarceration as a way to decrease the risk of having a repeat offender.

During the 2015 regular session, State Sen. Cam Ward, R-Alabaster, introduced a bi-partisan criminal justice reform bill that will put a focus on potentially using community-based rehabilitation and treatment for drug and non-violent offenders and reserve prison space for violent offenders, as well as revise current criminal penalties and sentencing.

The bill, SB 67, passed with overwhelming bi-partisan support in May and, if enacted could reduce the prison occupancy rate to 160 percent by 2021. It does not, however, decrease the mandatory minimum sentencing for marijuana related crimes.

Ward, who is also the chairman for the Prison Reform Task Force, could not be reached for comment on Alabama’s current sentencing laws for drug offenders.

As for those tasked to enforce the law, “[t]he concern we have over marijuana doesn’t really stack up against the concern we have over the heroin epidemic or the rise in fentanyl deaths,” Self said. “In terms of public safety, that’s what really concerns us. But until the law is changed, we have to continue to enforce it the way it’s written.”

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Today’s report on the changing ways society and the law treat marijuana and its uses represents what we expect to be an ongoing collaboration for the benefit of the community between Connection Media, LLC, the parent company of Weld for Birmingham, and the Alabama Initiative for Independent Journalism, the new nonprofit organization behind BirminghamWatch.org.

The goal of this partnership is to provide stronger, deeper, more meaningful journalism in the public interest, carried out with professionalism and careful attention to ethics and journalistic integrity.

Our first project together concerns the ways society and the law are changing around the controversial topic of marijuana. The project includes national reporting from America’s Weed Rush from News 21. News21 is sponsored by the Carnegie-Knight Initiative on the Future of Journalism Education. Local stories in the project are reported by BirminghamWatch and Weld journalists. This week’s Weld includes stories from our local collaboration.

Carol Nunnelley