For NORML’s 50th anniversary, every Friday we will be posting a blog from NORML’s Founder Keith Stroup as he reflects back on a lifetime as America’s foremost marijuana smoker and legalization advocate. This is the twentieth in a series of blogs on the history of NORML and the legalization movement.
In 2007, I was busted for smoking a joint on the historic Boston Common. It was my second time being arrested for marijuana possession (the first was in Calgary, Canada in 1977, the subject of an earlier blog). Busted twice, thirty years apart. Some people never learn!
Before getting into the details of the bust and our subsequent trial, let me again underscore that for the vast majority of the hundreds of thousands of Americans who are busted for marijuana-related offenses in this country each year, it is an incredibly destructive event. For many Americans, the ramification of a marijuana arrest are numerous, including: the loss of one’s job (or being thrown out of college if one is a student), a period of time behind bars, a life-long criminal record that severely limits one’s ability to advance one’s career and life goals, and thousands of dollars in legal fees for an attorney to try to challenge the legality of the arrest or diminish the severity of the penalty. For most who are busted, it is one of the most traumatic and disruptive events in their lives.
But because of my work with NORML, I have had the somewhat unique experience of enjoying the process that followed my arrests, if not the arrests themselves. That is because I have had the advantage of excellent pro-bono legal help and expert witnesses and other support to allow me to turn the busts into a pro-legalization publicity stunt to focus attention on the senselessness of treating marijuana smokers as criminals. And, importantly, I did not have to fear losing my job.
The 2007 Boston Freedom Rally
I was on the Boston Common in September of 2007 to speak at the 19th annual Boston Freedom Rally, a public protest against marijuana prohibition involving tens of thousands of people — most of whom use the occasion to publicly light up a joint to demonstrate our common disregard for prohibition. It is a marijuana smoker’s version of civil disobedience.
During the early years of NORML, similar events were known as “smoke-ins,” but as the movement matured, and became more aware of the need to communicate our message more effectively to the public, these events were renamed to be less confrontational and to appeal to mainstream America. Thus, were born events such as the Seattle Hempfest and the Boston Freedom Rally.
High Times and NORML shared a booth at this event, as we did for many years, before Massachusetts eventually legalized recreational marijuana in 2016. As the two best-known brands in the legalization movement, we had found it convenient over the years to join forces for these public events. The staff at NORML and High Times had all become friends and we enjoyed getting together for these annual rituals.
At the time, I was smoking some reefer I had brought for the occasion with High Times Associate Publisher Rick Cusick, and we had stepped behind our booth for some presumed privacy. I was 64 years old at the time with a full head of gray/white hair, and Cusick was 55, also gray-haired, neither of us fitting the stereotype of a marijuana smoker.
You Are Old Enough to Know Better!
The privacy we had thought we would find behind the booth was illusory, as within a minute or so two undercover cops came swooping down. One of them grabbed me by the shoulder, showed me his police badge and shouted, “You are old enough to know better than to be smoking marijuana,” as he placed me under arrest. The other officer then grabbed Cusick in a similar manner, while seizing the remaining roach from the ground, where one of us had thrown it when we saw the approaching narcs. Some unknown young rally attendee who had smelled the burning marijuana and had walked behind the booth to join us to share the joint had hurriedly walked away when the police arrived, and the police showed little interest in rounding him up. They seemed far more upset that two old men were smoking pot!
It was an unexpected development, as we had not intended to get ourselves arrested. We were simply enjoying a joint. Had we been trying to get arrested to make a political statement, we would have lit up during our speeches later in the day.
Nonetheless, the bust provided us a chance to focus public attention on the need to end prohibition and to challenge the marijuana laws in Massachusetts. These over-achieving cops had unwittingly arrested two lifelong crusaders for marijuana legalization who had no fear of being prosecuted, and who saw this as an opportunity to advance the pro-legalization cause.
I had spoken at the last dozen or so of these Boston events, and most were well attended, with tens of thousands of sympathetic people in the audience. Typically, several local and regional bands entertain throughout the afternoon, with political speakers scheduled between the bands, celebrating the joys of marijuana smoking and calling for the legalization of marijuana. Meanwhile scores of food and other vendors pay a fee to offer an assortment of products to those who attend. It is usually a lovely day on the Common.
Unfortunately, the police in Boston had generally maintained a hostile relationship towards the Freedom Rally since its inception. Most years the police line the perimeter of the Common in an obvious attempt to intimidate those who attend, and send in undercover, plainclothes officers to arrest those they see smoking, usually 40 or 50 attendees, sometimes more, mostly young teenagers.
When the cops arrested Rick and me, they walked us over to a nearby tent they had set up as a holding cell for those who were arrested, and as a staging area for the many uniformed police who were also assigned to the Common for the day. Once inside the tent we saw probably eight or ten uniformed police, with one older cop clearly in charge. He took one look at us and said, “Christ, how old are you fellows anyway?” obviously accustomed to dealing with teenagers rather than two gray-haired old men. We told him our age and then he began to ask us personal questions needed to complete the paperwork. Another cop came up and ask us to stand next to the back of the tent, so he could take our mug shots. We complied.
When the cop in charge, who was initially interviewing Rick, got to the question of where he worked, and Rick said High Times magazine, the cop looked up and said, “Oh Christ, I suppose you will be wanting a copy of your mug shot for the magazine.” Rick immediately said, “Yes, I would like a copy,” and handed the cop his business card. At that point, I took a business card out of my wallet and handed it to him and said, “I work with NORML and I too would like a copy of my mug shot.”
It was as if we had somehow let the air out of their balloon. They realized that unlike the others who were being arrested, we were neither frightened nor particularly concerned. Once they completed their brief questioning of us (i.e., home and business address, age, date of birth, occupation, etc.), the cop in charge noticed the obvious: that we were both wearing a large, bright orange speaker’s badge around our necks, indicating that we were scheduled to be part of the program later that day. And he seemed a little perplexed as to how he should proceed. First he learns that we are professional legalizers who don’t really give a damn if we are arrested for smoking a joint at a legalization rally, and now he finds that in fact we are scheduled to address the crowd later in the day.
In the middle of their trying to decide how they should deal with us, they asked us to step to the back of the tent for a few minutes as they processed others who had been arrested by then. All were young, most just teenagers, and those who were at least 18 were being given a citation and told to appear in court on a specific date. Those who were younger, and several of those arrested were younger, were taken downtown and their parents were called to come pick them up from the police station. But they were not sure how to deal with Rick and me.
What really tipped me off that they were a little nervous about the whole thing was that they failed to ever search us! Think about that. One is arrested for smoking marijuana and no one even bothers to search either of us to see if we had more marijuana in our possession. Yet that is precisely what occurred. They became so caught up in what to do with these two old men that they ended up sending us off with a citation, but never checking to see if we had other drugs in our possession. (We did not.)
Truth be told, at the moment I was arrested I did in fact have a second joint in my breast coat pocket. As the cop was jumping around, grabbing my shoulder and displaying his badge, I managed to get the second joint in one hand and drop it behind me, where Rick was able to cover it with his foot. When we went back to the scene following our release, we looked for the joint, but someone who had been standing nearby, and who likely saw me drop it, had clearly taken the opportunity to grab the joint once the cops moved on. Presumably, they put it to good use.
Before releasing us, the head cop said that they were supposed to be throwing everyone caught with marijuana out of the Boston Common for the day, but since we were speakers, he said that if we would leave the Common as we left the temporary cop station, and then walk around to the opposite side of the Common, they would permit us to reenter the Common and speak as scheduled, so long as they did not catch us with marijuana a second time.
Rick and I did as they said, left the temporary police station, turned left and exited the Boston Common altogether, only to walk around to the opposite side and re-enter, going directly back to the NORML/High Times booth, where we rejoined our friends and allies and reassured them that we were treated okay and would be speaking later that day, as planned.
When my time came to speak, I gave my standard ten minute stump speech, beginning with the admission that “I smoke pot and I like it a lot!,” a line that always brings a hearty response from the crowd, unaccustomed to hearing such pro-pot rhetoric from someone my age. “I first smoked marijuana in 1965 when I was a freshman at Georgetown Law School and have been a regular smoker ever since. There is absolutely nothing wrong with the responsible use of marijuana, and it should be of no interest or concern to the government. There is nothing wrong with smoking pot!”
I then announced that I had just been busted. “More than 800,000 Americans are arrested on marijuana charges each year in this country, and I just became the latest victim. I was just arrested, along with my friend and colleague from High Times, Rick Cusick, for smoking a joint behind the NORML/High Times booth. Can you imagine; smoking a joint at the Boston Freedom Rally. Why else would we all be here but to light-up a joint to protest marijuana prohibition. That is the whole purpose of attending this event.”
“Marijuana smokers are otherwise law-abiding citizens who work hard, raise families, pay taxes, and contribute to their communities in a positive manner, but who prefer to smoke a joint when we relax in the evening, just as millions of other Americans drink a beer or a glass of wine. It is time we stopped arresting and started respecting marijuana smokers.”
I reminded them that “this is only incidentally about marijuana; it is really about personal freedom,” and that with their help, we would soon restore a measure of personal freedom to the lives of tens of millions of marijuana smokers in this country. I wrapped up my talk by telling them that Rick and I would be using our arrests as the basis to challenge the marijuana laws in Massachusetts. Being arrested for smoking marijuana, while it may be limiting professionally in some situations, only gives credibility and respect when you are talking to an audience at the Boston Freedom Rally.
I left shortly thereafter to catch my flight back to D.C., and as I walked through the Boston Common I was literally surrounded by well-wishers who thanked me for coming to speak, and for standing up to the authorities. It was a comforting balance to the early part of the day, when we had been temporarily in custody.
It would turn out that the following year the state legislature would decriminalize the possession of a small amount of marijuana. Rick and I would be among the last people prosecuted under the old law.
Preparing for Trial
Our first task was to assemble a defense team who could represent us in this matter, and who would have the skill and experience to mount a comprehensive constitutional challenge of the state’s marijuana laws. The last major constitutional challenge in that state had been brought 29 years earlier, which gave us some hope that the courts might take a fresh, more critical look at them.
The late Harvard Medical School Professor Lester Grinspoon, a close friend and colleague for the last five decades, immediately called his old Harvard buddy Professor Charles Nesson to ask if he would handle our case. Nesson is the William F. Weld Professor of Law at Harvard Law School, and was the founder in 1997 of the Berkman Center for Internet and Society at Harvard.
Professor Nesson did in fact step forward to represent us pro bono, along with NORML Legal Committee attorney Steve Epstein and Boston attorney Matt Feinberg who had brought the 1979 constitutional challenge of the state’s marijuana laws. And jury selection expert Lynn Williams, another NORML Legal Committee attorney, when she learned of the bust, volunteered to come down from Maine to help us with the crucial task of selecting a jury.
Hoping for Jury Nullification
Rick and I had agreed that we did not want to deny that we had been smoking a joint on the Common. We wanted to take the stand, testify that we were sharing a joint, and let the jury know that we felt there was nothing wrong with that.
We hoped the jury might include some marijuana smokers who would nullify the charges against us. Jury nullification is a common-law right that juries exercised from the birth of our country until the mid-1800s, when courts began to rule that attorneys could no longer remind or instruct juries that they had this power. If they figure it out by themselves, a jury has the power to decide that applying this marijuana statute to these individuals, in this set of circumstances, would not be just, and they can refuse to convict. But lawyers can no longer instruct them of this “nullification” power they hold. They have to figure that out on their own. If the word “nullify” is even mentioned by the attorneys, the judge will declare a mistrial and start the prosecution over with a new jury.
If we failed at the trial court level, and one had to anticipate that outcome, it was our hope that our trial would generate positive media coverage and also help to change the stigma associated with marijuana.
When our case finally reached the trial phase, the assignment judge, Judge Leary, took a look at the case file, and said to the prosecutor, “Neither of these defendants has any prior criminal records. How much marijuana was involved?”
“Just one cigarette,” said the prosecutor.
“Then this is a waste of the court’s time, and I am inclined to just dismiss this case altogether if the defendants are willing to pay the court costs,” said the judge.
Professor Nesson, sensing that our legal challenge to the Massachusetts marijuana laws just might be disappearing in front of our eyes, then stood up and asked the court if he could be heard.
“Your honor, we would very much like to move forward to trial,” Nesson began. “These two defendants have traveled to Boston to challenge these charges, and they wish to proceed.”
“Well, then let’s just dismiss the charges and I’ll waive the fees,” offered the presiding judge.
“Your honor,” said Nesson, “My client, Keith Stroup, is the founder and legal counsel to NORML, the National Organization for the Reform of Marijuana Laws. His co-defendant, Richard Cusick, is the publisher of High Times magazine. They have spent their entire lives fighting these laws, and they have a right to have these charges heard by a jury of their peers, and they very much wish to exercise this right.”
With that a light bulb seemed to go off in Judge Leary’s head, and, with a big smile on his face, he said, “I see. It’s time to try for jury nullification. Courtroom 19.” And with that the pending dismissal was avoided, based on the objection of the defendants, not the prosecution. That must be somewhat unique in the annals of Massachusetts’s judicial history.
When we began the jury selection, it became clear that the judge to whom our case had been assigned, Judge Duggan, understood what we were trying to do, and he was going to give us a fair chance to make our case. As he began to address the first group of potential jurors, I was delighted to hear him refer to our arrest as having been at the Boston Freedom Rally, an event he described as an annual political protest on Boston Common against the marijuana laws. That was totally accurate, but it also would have been legally accurate if he had said we were arrested for smoking a joint on the Boston Common, and avoided any rhetoric suggesting this might have had some legitimate political purpose. We knew at this point that the judge understood what we were about politically, and that he was likely sympathetic.
The voir dire process involved the court bringing in about 25 potential jurors in a group, and then asking a number of questions to them as a group. Did they have any law enforcement professionals in their immediate or extended family? Had they ever been arrested or convicted on a drug charge or had any of their immediate or extended family members? Did they have any other reason why they might not be able to render a fair and unbiased verdict based only on the evidence?
Those who answered affirmatively to those and a few similar questions were then called up to the bench individually, where the judge asked specific questions about whether they could honestly set aside any biases and render a fair verdict in a marijuana case, and gave the defense lawyers and prosecutors an opportunity to suggest additional questions designed to get to the same question: could they be a fair juror in this case.
Unfortunately, out of the initial half dozen individual jurors who were questioned, four were disqualified by the judge because they indicated they might not be willing to convict someone for possessing a little marijuana. One potential juror actually told the judge, “I don’t care if the defendants light-up a joint while on the stand, I would never vote to convict them.”
While this was entertaining, it also cost us some of our most friendly jurors. One could not help but wonder why they did not keep their partisan views a bit more private, and try to get on the jury where they could vote to acquit us both. But for most of these individuals it was their first time serving on a jury, and they were just trying to be honest and forthright. And their honesty caused them to be excused. As we were to learn later, those left on the jury apparently did not have such misgivings.
Of Course We Were Smoking A Joint
Rick and I both took the stand and testified that we had shared a joint behind the booth where we were subsequently arrested.. Nesson asked me questions that permitted me to say, for the record, there is nothing wrong with the responsible use of marijuana and that I had been a responsible smoker for 42 years and that it is none of the government’s business what books I read, how I conduct myself in the privacy of the bedroom, or whether I smoke marijuana or drink alcohol when I relax in the evening. Those points had no legal significance, but I felt it was important that the record indicate we were taking a principled stand, and that we were not denying either our use of marijuana or acknowledging that there was anything wrong with that use. We were making a political statement when we smoked that joint at the Freedom Rally, and that should be protected First Amendment speech. It .was an indirect way to argue for the jury to nullify the verdict, without using those forbidden words.
When the case was submitted to the jury, we did not have to wait long. After less than 30 minutes, the jury reported two unanimous guilty verdicts. Our nullification attempt had failed with this jury.
The judge immediately said he would like to proceed directly into the sentencing phase, first asking the government for their recommendation. Prosecutor Patrick Devlin said they would recommend no jail, but rather six-months probation, and a ban on our attending the upcoming Boston Freedom Rally in 2008. While they did not include the specifics, one presumes they would have demanded drug testing during the six-months of probation and I’m sure they knew neither of us would likely pass a drug test.
Before we could even answer, the judge said he was giving the two defendants each a sentence of one day in jail, and credit for time served (the few minutes when we were in custody the day we were initially arrested on the Common), with no fine or court costs, and no probation. With that, he declared the case closed. We had been convicted of smoking a joint at the Boston Freedom Rally, but with no real penalty beyond the trouble and expense of taking the matter to trial. We had survived another close call without any real damage.
Over the next several weeks we filed an excellent brief prepared by the team of Nesson, et al, an appeal of our conviction challenging the Constitutionality of the marijuana laws. But like the overwhelming majority of appeals, it was eventually rejected by the appellate courts.
We had invested much time and effort into the legal challenge, and had lost both our attempt at jury nullification, and our constitutional challenge. Yet it nevertheless felt strangely satisfying to have pushed the state as far as we could, to have refused to take the easy way out when they offered to dismiss the case, and to have taken a public stand that we had done nothing wrong by smoking a joint at the Boston Freedom Rally.
We had survived to fight another day.