AANL4

ASK A NORML LAWYER - INSTALLMENT 4

Q: Why/how did Tommy Chong go to prison for paraphernalia? Isn’t that a very minor offense? Doesn’t every head-shop employee “commit” the same act or acts that he did by selling bongs?

A: Under Texas state law the offense of “Possession of Drug Paraphernalia” is as minor as they come, literally. It’s a Class C offense, a fine only non-jailable offense. But Chong wasn’t prosecuted under any state law. Instead, the Feds went after him.

There’s a reason for the phrase, “Don’t make a Federal case out of it”. Once something starts being handled as a Federal case, it’s automatically a big deal. But that doesn’t tell the real story of U.S. vs. Tommy Chong. Unfortunately, he became the victim of unfettered prosecutorial discretion and naked political ambition.

In 2003 the US Attorney - which means head Federal prosecutor - for Western Pennsylvania decided she could make a name for herself by going after someone that had already made a name for themselves. Tommy Chong was her unlucky target. 

When it was all said and done, more than $12,000,000.00 of our tax dollars had been spent on Operation Pipedreams and related prosecutions. Tommy was indicted for his involvement in Chong Glass/Nice Dreams, a company started by his son that was using the Chong name for selling bongs over the internet. 

More specifically, he was indicted under United States Code Title 21 Section 863, which reads, in part, that it unlawful for any person to sell or offer to sell drug paraphernalia. Now Federal criminal laws are supposedly limited to offenses that are multi-state, or are referenced specifically in the Constitution, so the law includes “using the mails or any other facility of interstate commerce” as one of the manner and means. 

Since the company was using the internet for a sales point, and mailing customers the products, there was never a question that the Feds couldn’t get involved if they so chose to. But wait… it wasn’t even Tommy’s company, and besides, I hear you asking, he went to jail for that? Was probation an option?

Yes, probation was an option, and in fact, Tommy was the only one of the fifty plus defendants who (a) had no criminal history and (b) was sentenced to jail. (Some of the other defendants who had prior offense on their record received jail time as well.)

So there were people more responsible for the “crimes” this company was involved in, and many of them received lighter sentences. Is it fair to guess that this was due to Tommy’s celebrity?

Actually, you don’t have to guess. After Tommy Chong was sentenced to 9 months in Federal lockup, the US Attorney said “He (Tommy Chong) wasn’t the biggest supplier.  He was a relatively new player, but he had the ability to market products like no other.”  In other words, they went after him for who he was; the famous person, the celebrity.

So to the second part of your question, about head-shop workers…? Well, there are two answers, I suppose. The first is that, since using the internet, using the telephone, or using the mailman in any way connected to the business gives the Feds jurisdiction - and good luck with your business model if you don’t ever use any of those - then indeed anyone connected to the business of selling bongs is subject to the same penalties as Tommy Chong. The statute provides for a maximum punishment of 3 years.

But for all practical purposes, I doubt we’ll ever see a Federal case like that again. Once was already more than enough. ~