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COLUMN: The Law in Real Life: Drafting Mistake in Marijuana Law Creates Problems for Georgia Court

COLUMN: The Law in Real Life

by Linda Holmes, J.D.

Drafting Mistake in Marijuana Law Creates Problems for Georgia Court

Oct. 14, 2008

Judges don’t get up in the morning to fix legislative mistakes. They’ll take their best shot at what the word “reasonable” means in a particular context, but for the most part, you can’t ask them to pretend, for example, that the word “more” is the word “less” just because legislators have written an extraordinarily bad law if it says “less.”

The Georgia Supreme Court currently is considering how best to approach a fairly obvious legislative mistake. Georgia’s law criminalizing the possession of less than 1 ounce of marijuana states: “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.”

Read that again. If you read it carefully, it says that anyone who is charged with possession is guilty. Strictly speaking, it abolishes most of the constitutional protections applicable to criminal law in the U.S. It abolishes the presumption of innocence, which is perversely fortunate because it also abolishes the right to a trial, so without a presumption one way or another, there would be no way to decide cases.

Clearly, this isn’t what anyone meant to do. This law wasn’t passed in 1971 because anyone believed you could declare people guilty simply because they’d been charged. The wording is almost surely a drafting error. The drafter intended to make clear that possession of less than 1 ounce of marijuana is a misdemeanor but accidentally criminalized being charged instead of being guilty. Presumably, until now, the law has been interpreted the way we assume it was meant to work: You’re still presumed innocent, and you still get a trial. Georgia has not been going directly from charge to sentence.

But now, an attorney representing a juvenile charged under the statute has raised the point that, on its face, the law is obviously unconstitutional. And if the statute under which the defendant was charged is unconstitutional, you have to cut him loose.

Is Striking an Unconstitutional Statute ‘Absurd’?

One of the Georgia justices reportedly pointed out during the arguments on the case that laws aren’t to be read so as to produce an “absurd result,” and certainly, that’s true. But the results here are not “absurd” in that they are illogical or paradoxical. They are simply unconstitutional, and obviously so.

This is a case that throws the issue of statutory interpretation into fairly stark relief. Courts have a much more difficult time using “interpretation” to repair broken statutes when the language is perfectly clear, as it is here. There aren’t two plausible ways to read “any person who is charged … shall be guilty.” What’s more, the legislature seems to have specifically tried to elevate the absolute guilt of all defendants who are charged against all legal protections that otherwise might be available by inserting the phrase “notwithstanding any law to the contrary.”

That brings us to the second problem with the way the statute is drafted: “Notwithstanding any law to the contrary” is the kind of language that frequently shows up in statutes and often causes more mischief than benefit. It’s usually inserted because someone wants to make a law sound airtight; it becomes, in effect, the “we really mean it” of statutory interpretation.

Certainly, sometimes it makes sense to specify that one law serves as an exception to another. If a state were to pass a law allowing a driver to exceed the speed limit on the way to the hospital, it would make sense to say, in effect, “notwithstanding the law against speeding, a person isn’t guilty of a crime for speeding up to 80 mph on the way to the emergency room.” But it wouldn’t make sense to say, “notwithstanding all of our other laws, someone who is speeding on the way to the hospital cannot be charged with a crime,” lest you accidentally provide that the person may drink, take drugs and punch his passenger in the nose, all because he happens to be driving to the hospital. Rarely does it make sense to try to make one law trump all others, and here, the maneuver seems to have made the Georgia Supreme Court’s task substantially more difficult. When the legislature states its intention to be free of other legal restraints, can the Court conclude that it could not possibly have intended to be free of the Constitution?

Court Should Avoid Slippery Slope

The Court’s choices are limited. It can’t take the statute as it’s written and continue to enforce it. The Court’s choices are to ignore the actual language of the statute and pretend it says something else or to find the law unconstitutional and throw it out. Obviously, the consequences of throwing out the law against marijuana possession in small amounts are significant.

But the consequences of outright ignoring existing language on the basis that its unconstitutionality is inherently absurd also would have significant consequences. Once the Court opens that door, it can expect to see the argument play out over and over: It will be asked to ignore statutory language that is unconstitutional and, rather than throw out an unconstitutional statute, draw a conclusion about what that language is supposed to say. Here, that’s not difficult. In the next case, it might be more so.

Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting.


Corrigan, Maura D., and J. Michael Thomas. ” ‘Dice Loading’ Rules of Statutory Interpretation.” NYU Annual Survey of American Law 59:231 (April 3, 2003).

In re: D.H., a child, 283 Ga. 556 (June 2, 2008).

Lamie v. United States Trustee, 540 U.S. 526 (2004).

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