Thursday, December 18, 2008

Marijuana Law Comes With Challenges

BOSTON — Last month, voters approved a statewide measure decriminalizing the possession of small amounts of marijuana. Now, wary authorities say, comes the hard part. They are scrambling to set up a new system of civil penalties before Jan. 2, when the change becomes law. From then on, anyone caught with an ounce or less of marijuana will owe a $100 civil fine instead of ending up with an arrest record and possibly facing jail time.

It sounds simple, but David Capeless, president of the Massachusetts District Attorneys Association, said the new policy presented a thicket of questions and complications.

One of the most basic, Mr. Capeless said, is who will collect the fines and enforce other provisions of the law. For example, violators under 18 will be required to attend a drug awareness class within a year, but it is unclear who will make sure that they do so. The fine increases to $1,000 for those who skip the class.

A complicating factor, said Mr. Capeless, the district attorney in Berkshire County, is that state law bans the police from demanding identification for civil infractions.

“Not only do you not have to identify yourself,” he said, “but it would appear from a strict reading that people can get a citation, walk away, never pay a fine and have no repercussion.”

Wayne Sampson, executive director of the Massachusetts Chiefs of Police Association, says he anticipates that many violators will lie about their identities.

“You can tell us that you’re Mickey Mouse of One Disneyland Way,” Mr. Sampson said, “and we have to assume that’s true.”

The authorities, he said, will also have to be sure that the substance they hand out citations for is marijuana, which will involve sending it to the State Police crime laboratory.

“You’re going to appeal it and go to the clerk’s hearing,” Mr. Sampson said, “and if we don’t have an analysis from the drug lab, the clerk is going to throw the case out.”

Mr. Sampson predicted that the law would result in de facto legalization of marijuana because it would prove too difficult to enforce.

“I would argue that the proponents knew these complications right from the beginning,” he said.

About 65 percent of state voters supported the decriminalization measure, which was promoted by a group that spent more than $1.5 million on the effort.

The group, the Committee for Sensible Marijuana Policy, said that in addition to ensuring that people caught with marijuana no longer have a criminal record, the change would save about $29.5 million a year that it estimates law enforcement currently spends to enforce existing drug laws.

A spokesman for the Marijuana Policy Project in Washington, which supports the drug’s legalization and created the Committee for Sensible Marijuana Policy to get the ballot question passed here, said that judging from the experience of other states with civil penalties for marijuana possession, Massachusetts officials were exaggerating the challenges.

“I can’t help but think that the real difficulty in implementing it,” said the spokesman, Dan Bernath, “is they don’t want to do it.”

Eleven states have decriminalized first-time possession of marijuana, though in most it is technically a misdemeanor instead of a civil offense.

In Nebraska, where possession of an ounce or less of marijuana is punishable by a $300 civil fine, the process has worked smoothly for three decades, said Michael Behm, executive director of the Nebraska Crime Commission.

In New York, possession of an ounce or less of marijuana is a noncriminal violation but is still processed through the criminal system, said Robert M. Carney, the district attorney in Schenectady County.

“They are brought down to the police station so their identity is established,” Mr. Carney said of violators, “but they are not fingerprinted because it’s not an arrest.”

In Massachusetts, the Executive Office of Public Safety is working with state and local law enforcement and court officials to determine how to apply the changes. Mr. Capeless said education officials were also in on the discussions because it was unclear whether public schools and universities could forbid marijuana possession under the new law.

A spokesman for the public safety office said its legal counsel was considering “a lot of questions” as the deadline drew near. But the spokesman, Terrel Harris, would not elaborate.

“We are just trying to make sure we have all the answers,” Mr. Harris said.

Mr. Capeless said that in particular the department needed to address a clause in the new law that said neither the state nor its “political subdivisions or their respective agencies” could impose “any form of penalty, sanction or disqualification” on anyone found with an ounce or less of marijuana.

“It appears to say that you get a $100 fine and they can’t do anything else to you,” he said. “Can a police officer caught with marijuana several times get to keep his job and not be disciplined in any fashion? Can public high schools punish kids for smoking cigarettes but not for having pot?”

Mr. Bernath agreed that the law was “not completely clear” on how to handle such situations, but predicted that they would be rare.

“I think the resistance has to do with dealing with something new,” he said. “We’re pretty confident that once this gets going and the newness of it wears off, a lot of the apprehension will go away.”
source: New York Times

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