Marijuana decriminilization -- R.I could learn from neighbors’ experience

(Published in The Providence Journal on July 2, 2012)

PROVIDENCE -- If Rhode Island, the latest Northeast state to decriminalize possession of small amounts of non- medical marijuana, asked its neighbors what's happened since they did it, hopes for a consensus would go up in smoke. Joseph Early, the Worcester County district attorney and Massachusetts District Attorneys Association president, listed the negative effects that have ensued since the Bay State three years ago decriminalized possession of an ounce or less. Trouble with enforcing the civil-fine tickets that replaced a misdemeanor charge is one, he says, and violent targeting of marijuana dealers, including some homicides, is another. But in Connecticut, where decriminalization of possessing a half-ounce or less took effect in July 2011, Chief State's Attorney Kevin T. Kane had decidedly different words. "It's hard to tell so far … what kind of effect it has had, if any," Kane said. He asserted that "as far as impact on crime, or whether there has been serious [additional work] for the courts, anecdotally it doesn't seem so." Rhode Island's decriminalization of possessing one ounce or less will go into effect April 1, 2013. The delay is meant to give police, prosecutors and the Rhode Island Traffic Tribunal, which will handle the civil violations, time to prepare for the change. The law will replace a misdemeanor charge that carried higher fines and potential jail time with a $150 civil penalty, akin to a ticket. There will be a "three-strike" rule: someone caught possessing will get a civil violation, but a third time in 18 months becomes a misdemeanor with larger fines and potential prison. The misdemeanor will be handled in District Court. Offenders younger than 18 will have parents notified, must finish an approved drug-awareness program, and do community service. Failure to do those within a year of the offense would raise the fine to $300. No doubt there are competing views in Rhode Island's next-door neighbors, and it may be too early to fully assess positives or negatives of their decriminalization laws. But since each state charted this course, some differences have emerged. Not long after Massachusetts approved decriminalization of an ounce or less - through a statewide ballot question in November 2008 -- the new law led to a significant court decision. On June 24, 2009, six months after decriminalization took effect, two Boston police officers saw a car parked by a fire hydrant. According to court documents, they said the 19-year-old driver was lighting a small cigar sometimes used to mask the odor of marijuana. One officer said he smelled a faint marijuana odor from the driver. The driver told the police he had smoked earlier in the day and, asked by an officer if there was anything in the car the officers should know about, he said no. The officers called for backup, four more officers arrived and "based on the odor of marijuana and just the way they were acting," the driver and a passenger were told to get out of the car. A lower-court judge found the driver and passenger should not have been ordered out of the car because officers did not meet a legal threshold to believe a crime was committed and could not do so based just on odor of marijuana. The Massachusetts Supreme Judicial Court upheld the finding, issuing a ruling that rested, in part, on police needing to meet a "reasonable suspicion" threshold in order to go beyond an initial reason for a traffic citation, such as parking in front of a hydrant. Reasonable suspicion is "tied, by its very definition, to the suspicion of criminal, as opposed to merely infractionary, conduct," the court said. Possession of an ounce or less is now an infraction. "Although we have held in the past that the odor of marijuana alone provides probable cause to believe criminal activity is under way, we now consider our jurisprudence in light of the change to our laws," the court said. Wayne Sampson, who heads the Massachusetts Police Chiefs Association, described the court ruling as an unexpected consequence. But in Connecticut, the marijuana odor ruling is not an issue because its laws do not contain the language crucial to the Massachusetts court ruling, according to Michael Lawlor, undersecretary of criminal justice policy and planning at the Connecticut Office of Policy and Management. Statistics compiled by the office for five months after the law took effect indicate a drop in arrests and prison for possession of small amounts compared with the same five months of the previous year, Lawlor said. And he asserted the decriminalization law frees up more law enforcement time and resources to focus on serious crime. Lawlor also said that, before the decriminalization law, virtually everybody who got charged with what was a misdemeanor ended up having the charge dismissed because the courts ordered defendants to diversionary or other programs. Getting there, though, took time, with multiple court appearances. "So why not do something where there actually is a penalty and it happens quickly?" Lawlor said. Studies of criminal justice, he added, have found that "penalties are much more effective when they are swift and they are certain." Connecticut Gov. Dannel P. Malloy, a Democrat, called his state's decriminalization statute "common sense" reform. "Final approval of this legislation accepts the reality that the current law does more harm than good - both in the impact it has on people's lives and the burden it places on police, prosecutors and probation officers of the criminal justice system," Malloy said in a June 7, 2011, statement. "Let me make it clear - we are not legalizing the use of marijuana. In modifying this law, we are recognizing that the punishment should fit the crime, and acknowledging the effects of its application." In Massachusetts, Governor Patrick, a Democrat, opposed the decriminalization, as did the state's attorney general and district attorneys. In Rhode Island, the legislation drew vigorous House debate but cleared the chamber by a wide margin. It prompted little debate in the Senate. Governor Chafee, an independent, signed the legislation into law but did not issue a news release or "signing statement" giving his reasoning. Rhode Island is the 15th state to adopt some form of decriminalization of marijuana possession. Elsewhere this year, a proposal backed by Gov. Andrew Cuomo to decriminalize possession of 25 grams or less of marijuana in "public view" failed in New York State, according to The New York Times, due mainly to opposition in a Republican-majority Senate. New York State in 1977 decriminalized possessing 25 grams of marijuana - not in public view - with a $100 fine, the Times reported. New Hampshire's legislature also did not move forward a decriminalization proposal this year. Whether federal authorities will recognize locally approved marijuana laws appears uncertain. Federal law puts marijuana in the same drug classification as cocaine and heroin - substances it considers to have a high potential for abuse. But U.S. Attorney Peter Neronha said recently, in response to a question about the Rhode Island decriminalization law on WPRI Channel 12's "Newsmakers" program, that "small amounts of marijuana are not something we would ever be terribly concerned about, because we don't spend our resources on small-amount cases."

Decriminalized: Rhode Island is the latest state to decriminalize possession of small amounts of non- medical marijuana. Decriminalization in some states means that marijuana possession is a civil violation. In other states it means a lower-level misdemeanor without jail time. In either case, subsequent possession violations can lead to criminal charges with heavier penalties. Alaska: In 1975, the state decriminalized possession of an ounce or less in a person's residence, though some recent state court decisions have contradicted the law. California: The state in 1975 made possession of less than an ounce punishable by a $100 fine. A driver's license suspension for up to a year may be imposed on anyone under age 21 who possesses less than an ounce. Colorado: Possession of less than an ounce is punishable by a $100 fine, under a 1975 law. Connecticut: The state in 2011 decriminalized possession of a half-ounce or less. Fines are $150 for a first offense, with repeat offenses punishable by fines of $200 to $500. A driver's license suspension may be imposed on anyone under age 21 who possesses a half-ounce or less. Maine: Possession of less than 2.5 ounces is a civil violation, with a fine ranging from $350 to $1,000. If there is another violation within six months, there is another $550 fine. Massachusetts: Possession of one ounce or less is punishable by a $100 civil fine. Mississippi: Possession of 30 grams or less for a first-time offender is a non-arrest misdemeanor and a fine of $100 to $250, but if someone has that amount in a motor vehicle the misdemeanor is punishable up to 90 days in prison and a $1,000 fine. Minnesota: Possession of less than 1.5 ounces is a misdemeanor that carries up to a $300 fine and a drug-education program. Nebraska: Possession of one ounce or less is a $300 civil fine for a first offense. Nevada: For those 21 and older, a first offense of possessing of up to one ounce of non- medical marijuana means up to a $600 fine and evaluation for drug treatment. New York: In 1977, decriminalized possessing 25 grams of marijuana that are not in public view, making it a $100 fine. North Carolina: First-offense possession of less than a half-ounce is a lower-level misdemeanor with typically no jail time. Ohio: Possession of less than 3.5 ounces is a lower-level misdemeanor with a $150 fine that is like a traffic violation, plus driver's license suspension ranging from months to years. Oregon: The first state to decriminalize possession of small amounts, in 1972. Possession of an ounce or less can draw fines from $500 to $1,000 or community service.