State v. Jackson

I respectfully dissent.

The courts somehow lose their perspective when dealing with drug cases. The legislature expressly created the personal use exemption for marijuana much in the same way it implicitly allowed a personal use exemption in the liquor control law, R.C. Chapter 4303. Spak v. State (1934), 48 Ohio App. 371, 1 Ohio Op. 39,194 N.E. 439.

In reliance on this personal exemption some people in Ohio try their hand at winemaking and there are books, specialty shops, winemaking clubs, etc., all devoted to this hobby. These amateur winemakers do not consume their entire product themselves, but serve it to other members of the family. Often the homemade wines are even served to guests who sometimes gag, but smile politely and speak of a fruity taste or a full-bodied bouquet. All this goes on without anyone running afoul of the law, because the standard test is commercialization, the profit motive.

The majority described this as a novel interpretation, yet it is what has been the standard for beer and winemaking for decades. The majority says one ought not amend under the guise of interpretation, and I most heartily agree. But where the legislature adopts a law against trafficking (commercial activity) and expressly creates an exemption for personal use (noncommercial activity), then the courts have a duty to carry out what the legislature intended. The legislature has also mandated that criminal laws be construed most favorably toward the accused. That means that we must construe the marijuana personal use exemption liberally, and carry out the intent of the legislature.

I think the clear intent of the legislature is to go after those who grow marijuana and then go out and sell it for a profit. The legislature also intended that those who grow it for their own use to be left alone. The legislature made that distinction with the definite purpose of imposing a more severe sanction on dealers, persons motivated by profit. If the courts do not maintain that distinction, then there really is no additional penalty for the commercialized trafficking in marijuana.

This is why the war against drugs is such a dismal failure. In Eighteenth Century England, when stealing was a hanging offense, there was a saying, "Hung for a sheep, hung for a lamb." It meant that where the penalty was the same, one was better off stealing a big, valuable sheep instead of a less valuable lamb. Without intending to do so, the courts were encouraging the theft of sheep by eliminating the greater penalty for the greater crime. Without intending to do so, the majority falls into that same trap.

History repeats itself, but all I can do is watch and dissent.

Thus, I dissent.