Massachusetts Aims For Marijuana Decriminalization in November-By Phillip Smith

Eleven states have decriminalized the possession of small amounts of marijuana, leaving those busted to face only tickets and fines instead of a criminal record and possible jail time. But most of them decriminalized in the 1970s, with Nevada being the most recent addition to the list in 2001. This year, thanks to a carefully-crafted initiative campaign by the Committee for Sensible Marijuana Policy (CSMP), which follows two years of groundwork-laying by local activists, Massachusetts may be the next state to take the step.

Last year, CSMP drafted a decrim initiative and gathered more than 80,000 valid signatures. Now, in accordance with Massachusetts law, the initiative is before the legislature, which can either pass it, offer a competing version up to the voters in November, or do nothing and let voters vote on the initiative itself in November.

According to CSMP, the initiative would:

*Amend the current criminal statutes so that adults possessing an ounce or less of marijuana for personal use would be charged with a civil infraction and fined $100. Currently marijuana possession can draw six months in jail and a $500 fine, plus a wide range of “collateral consequences” continuing long after.

*Remove the threat of a Criminal Offender Record Information (CORI) report for minor marijuana possession charges. Criminal records can haunt people when applying for jobs for the rest of their lives.

*Maintain current penalties for selling, growing, and trafficking marijuana, as well as the prohibition against driving under the influence of marijuana.

*Save Massachusetts approximately $24.3 million per year in law enforcement resources that are currently wasted on low-level marijuana possession arrests, according to a 2002 report by Harvard economist Jeffrey Miron.

While the initiative had a March 18 hearing before the Joint Committee on the Judiciary with a number of high-powered proponents, it is unlikely the legislature will act on it, leaving the voters to decide. That may be for the best, said Sen. Patricia Jehlen (D-Middlesex), who sponsored decrim legislation on which the initiative is based. While the Jehlen-sponsored SB1121 managed to win approval in committee, it has not gotten any further, nor has a similar bill, SB 1011, supported by the local activists of MassCann, the local affiliate of NORML.

An initiative will fare better with the public than in the legislature for a couple of reasons, Jehlen said. “It’s not a big issue for many legislators,” she pointed out, “and members are reluctant to take votes they think might be misunderstood by the public.”

But before that can happen, CSMP will have to go back to the voters for another round of signature-gathering as required by Massachusetts law, explained committee head Whitney Taylor. Under that law, no one who signed petitions during the first round of signature gathering can sign a petition during the second round. Still, Taylor predicted no problems.

“I’m very confident we can come up with the required number of signatures,” she said. “We have a lot of public support, we’ve been doing a lot of volunteer recruiting, and we’ve been working closely with SSDP chapters — a bunch have just opened in the Boston area. There is a really great synergy going on there,” she said.

“But while we have the enthusiasm of youth, we are also seeing a lot of buy-in from the broader public policy and advocacy community,” said Taylor. “Massachusetts has the largest number of nonprofits per capita of any state, and these people are very comfortable in their political roles. There are lots of criminal and juvenile justice people who think our money could be better spent. It’s great to see the support we’re gathering at this early stage. I know we will make the ballot,” she flatly predicted.

The initiative did have some early hurdles to pass. Last fall saw disagreement over aspects of the initiative language, particularly around whether it was wise to include marijuana in one’s bodily fluids in the definition of marijuana possession and whether that could create a fine where it doesn’t exist now. Some activists, such as NORML founder and current legal counsel Keith Stroup, worried that the language could become a precedent for other states to follow. Currently only one of them, South Dakota, defines a criminal offense of internal possession.

Taylor and initiative lawyers countered that there is conflicting case law on whether internal possession is already a criminal offense in Massachusetts that could draw a more severe punishment, or collateral consequences such as loss of college aid or problems in custody proceedings, and said the purpose of that language was to plug those holes by setting the same $100 fine as for external possession. They also argued that police can’t take a bodily fluid sample without probable cause, which they say makes an internal possession penalty theoretical. Ultimately, all the major marijuana reform forces in the state, including NORML and MassCann, decided to support the initiative.

MassCann has been promoting the decrim cause in Massachusetts for years, and can point to some admirable achievements. At times working alone, at times working with the Drug Policy Forum of Massachusetts, the local activists managed to get non-binding questions on medical marijuana or decrim on the ballot in dozens of representative districts around the state. The results of those contests have demonstrated strong support for marijuana law reform in the Bay State.

“We never lost a ballot question,” said MassCann treasurer Steve Epstein. “We did them in 2000, 2002, and 2004, and never lost, and we averaged 63%. We’ve also been working the legislature on reform there, but progress has been slow.”

A successful decriminalize marijuana initiative would serve the same purpose as the decrim bills currently before the legislature, said Epstein. “Any of them will result in police not being able to arrest people for simple possession, all would result in people not getting CORIs, and all would save the police time and money. The police here will look the other way. They do that half the time already.”

CSMP is honing its arguments as it looks forward to the fall campaign. “We are spending almost $30 million a year to arrest and book marijuana possession offenders,” said Taylor. “And that’s a conservative estimate. That money should stay in police coffers.”

In addition to the economic costs, the campaign will highlight the costs of a marijuana conviction to young people. “We are seeing about 7,500 marijuana possession arrests a year, and that means 7,500 CORI reports, and that means opening people up to being rejected by landlords and employers, losing access to student loans and professional licenses, and all of that,” Taylor said.

While opponents of marijuana law reform often cry that it will “send the wrong message” to the kids, Taylor said that is exactly backwards. “The wrong message to send to children is that if you make a mistake, we’ll punish you for the rest of your life,” she said. “With our initiative, whether this was just youthful experimentation or a sign of an actual problem, the consequences for law-breaking are immediate and done with, and that’s more fair than the law currently is.”

Now, the stage is set. Massachusetts voters have had nearly a decade to get accustomed to the notion of marijuana law reform, and the legislature, despite its inertia, is nibbling at the edges. Prominent Bay Staters are coming on board, fundraising is underway, and proponents are itching to take it to the ballot because they think they can win.

“The public supports it by about a two-to-one margin every time it’s on the ballot. I filed my bill because of a vote like that in my district,” said Sen. Jehlen. “It’s also a better way to spend our public safety dollars more wisely by focusing on real threats, and it prevents harm to those people who are caught with it. Yes, I do think this can pass.”


Reprinted with permission from Drug War Chronicle, Issue #530