New pot law poses questions on enforcement
Island police officers and courts are proceeding slowly this week to enforce a new law that decriminalizes small amounts of marijuana. In the view of some local law enforcement agencies, the new law creates inconsistencies in substance abuse penalties, adds unnecessary paperwork, and weakens their efforts to keep drugs out of Vineyard communities.
While there are several unanswered questions about implementation of the controversial measure, most law enforcement groups on Martha's Vineyard believe that little will change in the way they deal with offenders, because they seldom arrested offenders solely on a charge of possessing a small amount of marijuana before the new law was enacted.
The new law was approved by 65 percent of voters as Question 2, a referendum question on last November's ballot. It went into effect on January 2. Simply, it means possession of an ounce or less of marijuana or hashish is no longer a criminal offense, but a civil offense, subject to a $100 fine. An offense is not entered into any criminal record. It will not show up in future background checks for employment, or applications for permits and licenses.
Cape and Islands district attorney Michael O'Keefe was an outspoken opponent of the referendum question during the fall campaign. In a phone conversation with The Martha's Vineyard Times on Monday, he called the new law "de facto legalization" of marijuana.
"As people really begin to look at this," he said, "it's going to sink in that this is a foolish law. Ballot questions are a silly way to make public policy."
Massachusetts is the 13th state to enact some form of decriminalization of small amounts of marijuana. It is the first state to do so through a public ballot initiative.
"It's a civil matter now, over which we have no jurisdiction," said Mr. Keefe.
West Tisbury Police chief Beth Toomey opposed the referendum question, and she is taking a cautious approach now that it is law. "I'm not going to over react or under react," she said. "We'll proceed conservatively and take it slowly. I want to be fair to the people, fair to the police officers, and fair to the law. I want to do what's right."
Edgartown police chief Paul Condlin said he would adopt state guidelines for issuing citations. He does not anticipate significant problems in enforcement, but minces no words about the changes in the law.
"It's bad law," said chief Condlin. "I understand the intentions, but whoever formatted the law didn't realize the ramifications."
Bill Downing is president of the Massachusetts chapter of the National Organization for Reform of Marijuana Laws (NORML), based in Georgetown. He was active in supporting the Massachusetts referendum question during the fall campaign.
"The resistance is the blather from sore losers," said Mr. Downing in a phone conversation on Tuesday. "People are sore because they lost. The way they go about enforcing it is through the same citation method they've used for years. Since it's being applied to marijuana possessors, they don't like it."
Theory and practice
Oak Bluffs police lieutenant Tim Williamson explained how things have changed, from a police officer's point of view, by citing two scenarios. In the first scenario, two 16-year-olds are caught in possession of a six-pack of beer on a public beach. In the second scenario, two 16-year-olds are caught in possession of an ounce of marijuana on a public beach.
Police have a wide range of discretion in how they handle both scenarios, but according to Lt. Williamson, police now have fewer tools to handle the kids with marijuana.
The teenagers with the beer are subject to arrest and prosecution of a criminal offense. Court disposition of the case depends on a variety of factors, including criminal records. In Edgartown District Court, if it were the first offense for the two teenagers, their case would most likely be continued with pre-trial probation, continued without a finding, or dismissed upon completion of community service.
According to district court clerk-magistrate Liza Williamson, under state laws prior to January 2, the two teenagers with the marijuana could be arrested, or summonsed to court. If it was their first offense, the state law called for the criminal charge to be continued without a finding for six months. They could not be fined, but they could be assessed court costs. A record of the disposition would be on file for the rest of their lives.
Under the new law, the two teenagers with marijuana cannot be arrested. They can be issued a civil citation, and fined $100. Since they are under 18, they must attend a drug awareness program, and complete 10 hours of community service. They can pay the fine, complete the programs, and the case will be closed. If they dispute the charges, they can request a hearing before the clerk-magistrate. If the clerk-magistrate decides that a preponderance of evidence shows they violated the civil statute, they will be fined $100 and, if under 18, ordered to a complete a drug awareness program and community service. No permanent record of the citation is entered into the court records. The citation will not be available to any future employer evaluating the teenagers for a job. It will not be cause for denying student financial aid, public housing, public financial assistance, including unemployment benefits, the right to operate a motor vehicle, a firearms identification card, or the opportunity to become a foster or adoptive parent.
Procedure and paperwork
The new law presents some procedural barriers for police, including the issue of identification. Under civil laws, a person is not required to identify himself or herself to police. If that happens, police are faced with the prospect of a time-consuming investigation to determine identification. In the past, police could simply use their discretion to make an arrest, and hold the suspect until they provided identification.
"I think they've taken a tool away from police officers out on the street," said Lt. Williamson.
Proponents of the new law say those objections are unwarranted. "When they were giving citations out for jaywalking and they were unable to demand I.D., it didn't seem to bother them much," said Mr. Downing, president of the state NORML chapter. "Question 2 didn't change the citation process."
Police officers still have discretion on whether or not to issue a citation. In the scenario of a person who refuses to identify himself, police officials told The Martha's Vineyard Times they would likely seize the marijuana and send the person on their way, unless there were unusual circumstances that warranted a citation. In the officials' view, issuing a citation ties up the police and the courts, and takes time away from enforcement of more serious crimes.
Ironically, seizing the marijuana and releasing the offender is exactly how police would likely handle the case before the new law, if the person did identify himself or herself. Arrests for possession of marijuana alone were rare before the new law, according to police and court personnel.
The new law also requires substantial coordination between police, the courts, and local town clerks. All fines under the new marijuana law are paid to town clerks, and deposited into the town's general fund. Copies of citations must be sent to the town clerk in the town where the citation was issued, and in the case of person 18 or under, sent to the parents' last known address. If the fines are not paid within 21 days, the citing officer must determine whether to file a criminal complaint. If a person under 18 is ordered to go through a drug awareness program, they have one year to file a certificate proving the program was completed. If no certificate is filed, the courts can increase the penalty to $1,000, for which the parents and the underage offender are jointly liable.
"Those cases will stay in limbo for a year, and we'll have to coordinate," said Ms. Williams, the district court clerk-magistrate. "Without question it's more work for the courts, more work for the police, and more work for the town clerks. Even if it's minimal, it will be taking attention away from other important things."
A point of contention cited by law enforcement is the one-ounce threshold that makes possession a civil offense. "An ounce of marijuana, is essentially up to 50 joints," said Lt. Williamson. "That's not a small amount of marijuana. The people that voted for this may remember the marijuana of the 1970s and 80s. Marijuana is much more potent these days."
Some point out that it is a criminal offense to possess an open container of alcohol outside of a licensed bar or restaurant. But it is now only a civil offense to smoke marijuana in public. The state attorney general is circulating a model bylaw that would make using marijuana in public an arrestable offense, with a fine of $300. In Oak Bluffs, police chief Erik Blake plans to sponsor such a bylaw before voters at the annual town meeting this spring. Neither Chief Toomey in West Tisbury nor Chief Condlin in Edgartown foresee an effort to change local bylaws.
Those who campaigned for the decriminalization of marijuana promise to vigorously oppose efforts to create new restrictions at the local level.
"If towns try to recriminalize marijuana that would be an entirely different matter," said Mr. Downing. "The idea that towns, which are run by voters, are going to have a vastly different opinion than the voters of the state, is unrealistic. I know the police chiefs and district attorneys would like to see it recriminalized, but they don't run the towns, the people run the towns, and people have voted.'
Critics also say decriminalization of marijuana encourages other crimes. "Marijuana is not going to just appear in some kid's pocket," said Lt. Williamson. "He had to buy it somewhere, somebody had to grow it."
Steve Nixon, principal at the Martha's Vineyard Regional High School, emphasized that the new law will not change the school's approach to insuring a drug-free environment.
"The law applies to what happens outside," said Mr. Nixon. "There are always going to be differences between laws and policies. Whenever you're on school grounds, school policy takes precedent."
The school's policy is outlined in the 2008-2009 student handbook. It is based on the state law that says that a student who is found in possession of a controlled substance on school premises or at a school-sponsored or school-related event, including athletic games, can be expelled.
School policy allows for punishment short of expulsion. The students can be suspended from school and suspended from all school activities outside of class for up to one year, and required to perform up to 80 hours of community service.
The school is considering action to make sure students understand the new law, through student advisories, where a small group of students meet with an adult to discuss issues affecting the school.
"We may incorporate it," said Mr. Nixon. "That's something we have a group working on."
Dan Cabot contributed reporting for this article.