The Starting Five, 4/17/2014


In 40 years of criminal defense work in Indiana, attorney Steve Dillon has seen much hypocrisy, ineffective policy and injustice in the Indiana legal system.

A founding member of Indiana's National Organization for the Reform of Marijuana Laws chapter and long-time Libertarian politician, Dillon plans to retire from active practice this summer — right around the start date for the most massive reform of the state's criminal code in a generation, a complete restructuring of felony classifications and sentencing guidelines set to take effect on July 1.

A pending question remains unanswered as Dillon turns toward the next chapter of his life: Will he live to see Indiana voters stand up for what the majority of them say they believe in poll after poll — that marijuana should be decriminalized in Indiana?

If a strong wave of public pro-pot sentiment can be harnessed in the next gubernatorial race, perhaps the former Purdue University varsity debate team member will capture enough voter interest to make a difference — if he declares candidacy, a move he has not ruled out.

"Steve has been a great friend and mentor to me since our initial meeting," wrote attorney Bill Martin in a recent email informing NUVO that 2014 marked Indiana NORML's 40th anniversary. "Often, after giving an inside tip on a case (which could only be known from his many years of practice),Steve is quick to say, 'I bet they didn't teach you that in law school.' They never did, of course.

"While the idea of legalization is very popular now, it hasn't always been; and I am sure there were plenty of times where INORML could have faded away. Steve never allowed it to."

At an April 11 interview at his office, a house at 36th and Pennsylvania christened "La Casa," which is also home to Indiana NORML, Dillon reflected on his legacy, which includes — in addition to the founding of IN NORML — five successful lawsuits against policies that impinged on Hoosier's constitutional rights.

"I'm proud of what I've done ... It's about freedom and the right to choose," Dillon said. "Indiana's penal code shall be founded on the principals of reformation and not vindictive justice. Reformation is what our constitution offers: Where is the compassion? Where is the reformation? If you're going to divert, you're going to have to fund treatment... "

Twisted punishment

The original purpose of structuring the criminal code, said Dillon — who chairs the criminal justice section of the Indiana State Bar Association — was to reduce prison populations — and the need to build a new prison for $200 million or more — by diverting lower-level, non-violent offenders into community treatment programs devised to address the root problems of addiction, mental illness and other social trauma.

"I was in the Legislature two years ago and they spent all day talking about drug problems in Indiana," Dillon said. "It was amazing: They didn't mention marijuana all day long. What they talked about was methamphetamine, precursors for methamphetamine, meth labs, the new heroin epidemic, people dying like crazy on prescription drug overdoses — oxycontins, oxycodone ... These were the drug problems in Indiana.

"We've heard evidence that we spend $150 million a year arresting 13,000 young people for little bits of pot. At the end of the day, I'm not sure the penal code is really going to address those [budgetary and reform] issues as well as it could have ... During the political process they've reduced the jail time credit for the high-end offenses; they've raised penalties for some of the high-end offenses. People are still going to prison for marijuana. They say a lot of the low-level offenses can be diverted to community programs. But ... to not send the people for low-level drug possession offenses to prison, they have to have money in the communities to fund treatment programs and most counties don't have it — and there's nothing in this penal code to make them do it."

Dillon said he heard expert testimony at the Indiana General Assembly this year that the criminal code changes would result in 1,000 more people in prison instead of a reduced prison population — and there is not enough funding and it's not ready to go in effect.

"That's the opposite of what the first goal was when it started," Dillon said. "I heard person after person [testify], 'This is not going to work.' It was ignored."

He added that 80 percent of the prison population has mental issues or drug problems and those who seek treatment face waiting lists if any help is available at all. Too often, prisoners with significant issues are isolated in solitary confinement for inhumane lengths of time, a practice recently highlighted in an U.S. District Court case in which the Department of Corrections was ordered to work with the ACLU and other stakeholders to devise a solution. No word yet on this groups' progress.

It doesn't take an MBA

to see the opportunity

In an agricultural state that's supposedly honors a pro-business, small government tradition, Dillon sees a disconnect between the business opportunities associated with the decriminalization of marijuana and the rhetoric espoused in the political arena.

"Business is going strong in Colorado and Washington where they've legalized marijuana and it's actually being taxed and regulated," he said. "Those states report making millions of dollars in sales taxes from taking a different approach to the prohibition of marijuana. They're saving hundreds of millions in law enforcement money not busting people for a small amount of pot."

The U.S. arrested more than 800,000 people arrested last year for marijuana possession — 90 percent of those had less than an ounce marijuana, he said

"In Indiana we spend about $150 million a year ... arresting about 13,000 young people and minority people in Indiana."

Entrenched ignorance

Ignoring the evidence that criminalizing marijuana squanders tight resources is a trait Dillon and his NORML cohorts can trace in the country's political leaders since at least the '70s.

In a blog post marking the 35th anniversary of the Shafer Commission's March 22, 1972 report to President Richard Nixon, Paul Armentano, a senior policy analyst for NORML, highlighted the following passage of that:

"The actual and potential harm of use of the drug is not great enough to justify intrusion by the criminal law into private behavior, a step which our society takes only with the greatest reluctance.

"... Therefore, the Commission recommends ... [that the] possession of marijuana for personal use no longer be an offense, [and that the] casual distribution of small amounts of marihuana for no remuneration, or insignificant remuneration, no longer be an offense."

Nixon forsook the commission's recommendations in favor of a war on drugs policy that persists to this day. NORML has been fighting the federal policy of scheduling marijuana as a schedule one narcotic — on the same level as heroin and LSD — since the '70s. When an administrative law judge with the Drug Enforcement Agency agreed in 1988 that marijuana was misclassified, leadership declined to take action, as it has to this day. During a Congressional hearing on Tuesday, Attorney General Eric Holder said the DOJ will not reschedule marijuana which would in turn scale back punishments. Holder instead deferred to Congress to take action.

When NORML first started in Indiana, it was a two to 10 year sentence for possession of under 25 grams of marijuana, for a first offense.

"You could get sent to prison for 10 years for having a joint in Indiana when NORML started in Indiana back in 1974," Dillon said, noting that in some cases the penalties doubled to 10-40 years.

Under the penal code reform of 1976, Indiana reduced the penalties and did away with the indeterminate sentences, but people still faced up to eight years in prison and with enhanced penalty zones, in some situations people face up to 20 years in prison for marijuana.

The new penal code will reduce marijuana possession penalties for 30 grams or less to a B misdemeanor level — six months instead of a year. Plus, six months off the top end of the high level of possession of marijuana. But beyond that, marijuana is still pretty much criminalized in Indiana.

"They did pass a bill to legalize hemp production in Indiana, so once it's approved by the federal government ... It's still got that big approval problem, but at least there's some momentum to get that," Dillon said.

Racial disparities persist

NORML and other pot proponents have long argued that prohibition of marijuana started as a racist policy — and continues as such.

"The national NAACP has taken a strong approach recently to point out the racial disparity of arrests," Dillon said, noting that a recent report from the ACLU that found blacks are four times more likely to be arrested for possession of a marijuana than whites. "Some places are extremely racially biased, where it can go up to seven times more likely."

Dillon is currently working with the NAACP in Monroe County to propose the City of Bloomington adopt the lowest priority of enforcement for marijuana possession and paraphernalia.

Indiana Governor Steve Dillon?

In a display box in Dillon's office are buttons he's collected running for nine various offices — including mayor, prosecutor and, in 1996, governor against Steve Goldsmith and Frank O'Bannon. In fact, he marshaled the effort to collect the more than 50,000 signatures to lock in a space on the ballot for the Libertarian Party, a feat no other minority party has accomplished.

Dillon "should be proud of what he did for the party. It was huge," Andrew Horning said in an email exchange. Horning is currently running as a Libertarian for the congressional seat currently occupied by a Republican incumbent, U.S. Rep. Larry Bucshon. "The Green and Constitution parties would surely love to have ballot access ... it'd immeasurably improve their reach, significance, and odds of survival."

Dillon hinted that his display case may not be quite full — that perhaps there is room to chronicle one more race — a big one that would offer a statewide platform for debate. Maybe, after he stops taking criminal cases, he can devote more time to engaging Indiana's electorate.

Editor's note: A previous version of this story included cocaine with the list of Schedule One narcotics. It is, in fact, on Schedule Two.

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