One of the oft-forgotten caveats of the so-called “War on Drugs” is that drug paraphernalia laws can be used to convict someone who wasn’t found selling or even in possession of drugs. Owning or selling bongs, for instance, can be sufficient to bring charges against someone, although paraphernalia charges typically accompany other, more serious ones. While simple possession of drug paraphernalia is not a federal crime, unlike selling it, some states have chosen to forbid such items.
According to the legal definition, “drug paraphernalia’’ means anything intended “for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance.” This long-winded list of verbs means, concretely, that literally any item on the planet can potentially be considered “drug paraphernalia” in the eyes of Lady Justice. Items as benign as spoons, kitchen scales, dollar bills and lighters have all been used to prosecute people under paraphernalia laws.
Operating on the Edge of Legality
Even if a business legitimately sells items that could potentially be used to consume illegal substances but could also be used for legal ones (like tobacco products), the business is not safe from law enforcement. The law explicitly states that an item can be considered drug paraphernalia depending on “the manner in which the item is displayed for sale” or the “circumstantial evidence of the ratio of sales of the item to the total sales of the business enterprise,” among other factors.
That is not to say that head shops—stores that sell primarily items to consume tobacco and marijuana, as well as related merchandise—are entirely illegal. “It all depends on how we present our products,” explains one owner of such a business, who chose to remain anonymous. “If we tell our clients that what we sell is exclusively for smoking tobacco, we are not technically doing anything illegal.”
In that same business, despite a cannabis symbol displayed on the counter, several signs remind customers that smoking marijuana is illegal, and that any item purchased there, including bongs and similar items, must be used strictly within the boundaries of the law. This trick allows Wisconsin head shops to operate on the edge of legality.
Simple Possession Is Illegal in Wisconsin
Wisconsin is one of the states that chose to outlaw the possession of drug paraphernalia. According to Wisconsin law, someone convicted for simple possession of paraphernalia can be fined up to $500 and imprisoned up to 30 days. It is a misdemeanor. For manufacture or delivery of paraphernalia, the fine is increased to $1,000 and the imprisonment to 90 days. In New York for comparison, the penalty for simple paraphernalia possession—such as a kitchen scale—is imprisonment of up to one year and as much as seven years for subsequent offenses.
Unless someone has been caught red-handed using drugs or drug residue is found on an item, it is difficult to prove that it was really intended to consume illegal substances, so such cases rarely make it to court. Tom Grieve, local criminal defense attorney, warns that being convicted for possession of drug paraphernalia in Wisconsin is not “just a ticket,” however, as convictions become public record and can significantly affect employment.
“The cop almost certainly told you it’s ‘just a misdemeanor ticket; just pay and be done with it.’ They don’t want to show up in court; they want their convictions to stick.”
