Articles Posted in Drug Offenses

In my last post on this subject, I explained the legal changes soon to take place in Massachusetts (probably early January 2009) in the area of marijuana possession and use. Police officials in Massachusetts, understandably, are now publicly expressing concern that they have no idea exactly how to enforce this new law. Among the questions they have:

• How will police officers on the street accurately measure what constitutes one ounce of pot? Should each police cruiser have a measuring scale in it? If the pot is rolled into cigarettes, how many joints equal an ounce?

• If a vehicular stop occurs and pot is found, does that give officers probable cause to search the vehicle for evidence of criminal activity or contraband? Will any such searches withstand legal challenges?

Now that voters in Massachusetts have overwhelmingly approved (by a 65% to 35% margin) last week’s November 4, 2008 statewide ballot initiative, it falls to the state’s chief prosecutorial and law enforcement officials to “iron out” the new procedures and legal protocols necessary to shift away from the decades-old criminal law enforcement scheme for marijuana possession. Presently, that criminal statute provides for maximum penalties for up to six months in jail and a $500.00 fine, for possession of any amount of marijuana. The new law will decriminalize possession of one ounce or less of pot, and instead provide for a civil fine of $100.00 in its place. The law presumes that a person found in possession of one ounce or less of marijuana has no intent to distribute (i.e., is not a dealer) and intends the substance for personal use only.

On the issue of decriminalizing possession of small amounts (one ounce or less) of marijuana, it seems that the public appears to have been ahead of the politicians here: All 11 of the state’s District Attorneys, the Massachusetts Chiefs of Police Association, Attorney General Martha Coakley, Governor Deval Patrick, a wide range of state legislators, and an equal complement of leading religious leaders, all spoke out actively in opposition to making possession of less than one ounce of pot a civil offense. (Notably, so too, editorially, did the Boston Globe.) Despite this, voters approved this measure by an almost 2-to-1 margin. Whether in agreement or disagreement with this ballot result, few responsible people can argue that the result isn’t a voter mandate. The approved ballot measure will become law 30 days after being presented to the Governor’s Council, which usually meets in late November or December. That means the new law will take effect probably in early January 2009. Until the date the new law takes effect, the present law governing possession of any amount of marijuana remains in effect.

People should understand several important points: First, the new law only partially decriminalizes possession of marijuana (one ounce or less,) and the new law isn’t quite as lenient as it seems: Anyone caught with an ounce or less of pot will be forced to forfeit the marijuana, as well as being assessed the civil fine of $100.00. (Exactly where this confiscate pot will end up, is anyone’s guess, notwithstanding regulations that I am sure will soon be developed.) In addition, anyone under the age of 18 caught with an ounce or less will not only have to forfeit the pot, but if they don’t complete a mandatory drug awareness program, the fine they face will be ten times the normal fine: $1,000.00.

Looking ahead to possible legislative changes to criminal law in Massachusetts, in November voters here are going to have an opportunity to vote on more than just the presidential election alone. One of the ballot questions in Massachusetts will ask voters if possession of a small amount of marijuana (one once or less) should be de-criminalized. The Committee for Sensible Marijuana Policy (CSMP) has secured over 20,000 signatures in support of placing the measure on the November ballot. Assuming the state secretary can verify 11,099 of those 20,000 signatures, the question will appear on the ballot, which at this date appears very likely. The voters’ decision on that ballot would be binding (i.e., if passed, the measure would become law.) Last fall, CSMP collected over 80,000 signatures from all 351 cities and towns across Massachusetts, 15,000 more than required by law, in order to place the ballot question before the legislature in Massachusetts (a separate requirement in the initiative petition process.) Representatives of CSMP have pointed to the high amount of signatures received from across the state, as evidence of the broad-based support for changes in this area of law.

Predictably, opinions run strong on both sides of the question. Many people, among them prominent medical and health authorities, believe that marijuana use is less harmful and less addictive than is alcohol use, or cigarette smoking. CSMP argues that each year in Massachusetts, over 7,500 people are arrested for a crime that they contend is harmless and victimless. In addition, supporters of the measure argue that under existing law, enormous police and prosecutorial resources are directed each year in Massachusetts to prosecute this crime – to the tune of $24 million in state and local money annually. Under Massachusetts law presently, the penalty for marijuana possession is a maximum of six months in jail and a fine of up to $500.00. While most persons charged with this crime receive a minimal sentence or probation, offenders do receive a criminal record, and that record becomes part of the Criminal Offender Records Information (CORI) system. CORI records are available to lenders, housing agencies, and employers, who can use this information to deny an applicant credit or housing. Following a conviction for this offense, college and graduate students can be denied student loans or have those loans.

It is important to note that the proposed measure would not “legalize” possession of marijuana –it would decriminalize possession of one ounce or less (an amount which is presumed to be for personal use only, and not for distribution.) The proposed law would replace the current criminal penalties, and substitute in its place a civil system of fines, similar to vehicular speeding fines. Each offense would incur a fine of $100.00. In support of its position, CSMP argues that, in fact, its ballot measure is the more moderate of several marijuana reform efforts currently being debated. MassCann, which is the sate’s chapter of the National Organization for Reform of Marijuana Laws (NORML,) endorses CSMP’s goal, but believes even broader, more substantive changes in this area of drug law should be made. Specifically, MassCann believes that marijuana should not just be decriminalized, but be simply legalized and taxed appropriately, just as are alcohol and cigarettes.