Marijuana law unconstitutional, lawyer argues

Suspects charged with crimes in Georgia have the right to the presumption of innocence and a trial by jury —- or, at least, most people would think so.

But the Legislature must have forgotten those bedrock principles in 1971 when it passed a law making possession of less than 1 ounce of marijuana a misdemeanor, a Lawrenceville lawyer told the Georgia Supreme Court Tuesday. For this reason, the law should be declared unconstitutional, argued Christopher McClurg, who represents a Gwinnett County juvenile.

The law reads, “Notwithstanding any law to the contrary, any person who is charged with possession of marijuana, which possession is of one ounce or less, shall be guilty of a misdemeanor.”

“It couldn’t be any clearer,” McClurg told the court. “Read the words they put on the paper. … It’s unconstitutional on its face.”

But Justice George Carley, during Tuesday’s arguments, questioned whether the court must overturn the law.

“Statutes aren’t to be read literally if they produce absurd results,” he said. “That’s sort of absurd, isn’t it?”

McClurg responded, “I’m not sure what the Legislature meant by that, except they were very clear by what they put in that sentence. … How do we explain that to all the people of Georgia?”

Gwinnett County District Attorney Danny Porter said the drug statute should be read in context with other laws, particularly the Violation of Georgia Controlled Substances Act that grants legal protections to all defendants.

“I live in a world where a defendant can’t be said to have done it until I prove it beyond a reasonable doubt,” Porter told the court. The law was passed to reduce the penalty for possessing less than an ounce of marijuana, not to deny due process rights, Porter said.