Boston Criminal Attorney Blog

When it comes to drug policy and criminal law, some states in this country move faster, and more intelligently, than others. Two of those more rational states right now happen to be our New England neighbors, Connecticut and Rhode Island.

I’ve blogged previously about how wasteful and counterproductive state and federal laws are that criminalize the possession and use of small amounts of marijuana for personal use. Individually, states that criminalize the possession or use of less than one ounce of marijuana spend tens of millions of taxpayer dollars arresting and prosecuting an act that is so benign it is actually laughable. Collectively, on a national scale, the states spend hundreds of millions of dollars each year chasing a substance that is medically and scientifically benign. Across the United States, tens of thousands of local and state police spend untold numbers of man-hours and taxpayer dollars “investigating”, arresting and prosecuting people who are no more harmful than their next door neighbor (and who in reality probably are their next door neighbors.) Indeed, on the “harmfulness” scale, pot is exponentially far less harmful than drinking alcohol – yet for persons over 21, drinking is entirely legal. The most irrational, fervent opponent of marijuana decriminalization has yet to explain this glaring contradiction.

This legal schizophrenia is not only ridiculous; it’s unjustified on any level: Medical, legal, financial. As a Dedham, Massachusetts drug offenses lawyer, I can assure you, this is a complete and total waste of taxpayer dollars, law enforcement and prosecutorial resources. Yet, slowly, there is hope that the legal and legislative climate on drug laws is changing. Massachusetts drug laws changed dramatically in the area of pot decriminalization two years ago, but only in response to a state voter referendum – not a legislative act signed by a governor.

That may change soon in our neighboring states of Connecticut and Rhode Island. In Connecticut, legislation is currently being debated that would decriminalize possession and use of less than an ounce of pot, and furthermore (unlike present Massachusetts marijuana law,) allow judges in that state the option of imposing home arrest for nonviolent offenses involving possession of less than 4 ounces of marijuana. That is intelligent drug policy. People arrested for these “offenses” are no more violent than anyone else in society – and they should not be incarcerated behind bars. Jail spaces in our already overcrowded prisons should be reserved for violent criminals who truly belong there – not nonviolent people who wish to use a substance that is far less harmful than alcohol. Making prospects more hopeful in Connecticut, is the fact that both Gov. Daniel P. Malloy and state Senate Majority Leader Martin Looney,( D-New Haven,) support this rationale and sound measure.

A recent poll released by the Quinnipiac Polling Institute reported that 65 percent were in favor of no longer treating possession of small amounts of pot as a crime, and that 79 percent of Connecticut voters were in favor of a medical marijuana bill.

To the south, the Rhode Island General Assembly is currently considering a bill introduced by state Sen. Joshua Miller, (D-Cranston,) to decriminalize the possession of one ounce or less of marijuana. The bill was filed after the findings of a state Senate commission studying the effects of continuing to prohibit marijuana possession, which Miller chaired. Miller has said, "It doesn't make sense to have our cash-strapped state spending money putting people in prison for possessing a little of something that is less dangerous than some of the things you can legally buy in stores." Under the bill, marijuana possession would be re-categorized as a civil offense. First-time offenders would pay a fine of $150; second-time offenders would be fined $300. Minors who are fined would also be required to participate in a drug awareness program of at least four hours and complete 10 hours of community service. In addition, their parents would be notified of the offense by the state. How any rational person could oppose this legislation, is beyond me.

Aside from the justice issues involved, these fines offer the state of Rhode Island a tremendous revenue source for needed state programs. Virtually half of the bill's revenue would be designated for youth drug awareness and treatment programs. The Rhode Island Herald Editorial Board has reported that up to $10 million could be saved in law enforcement and prosecutorial expenses if the measure were passed.

With all these inarguable reasons to decriminalize pot, why hasn’t it happened in more states than the 12 where it is currently decriminalized? Needless drama. Blindness. Politics. And hidden agendas. (Don’t think that police chiefs and police departments who rail on about the “dangers” of marijuana aren’t thinking about keeping their jobs in the process.) Indeed, no less a respected organization than Law Enforcement Against Prohibition (LEAP), a national organization of retired police and law enforcement officials, has forcefully advocated for marijuana legalization. These former police officers know how foolish the waste of taxpayer dollars is in arresting and prosecuting otherwise everyday, law-abiding citizens is. They also know how counterproductive existing laws are, in fueling illegal drug cartels and dealer networks. Jack Cole, President of LEAP, has said that “Our existing drug laws on marijuana are foolish and counterproductive.” Saddling someone with a criminal record just because he wishes to use marijuana in private is unfair, unwise, and unjust. Let’s hope that our neighbors in Connecticut and Rhode Island, follow our lead – but this time, in the Legislature, signed into law by a governor.

Legalization of marijuana is sound, prudent, logical public policy. The debate should no longer be over whether or not we should legalize marijuana, but how we should legalize it.

It would seem that almost anyone could agree on the need to criminalize and punish Massachusetts sex offenders who deliberately send obscene messages electronically to minors, wouldn’t it? Well, make that “anyone could agree on the need” to accomplish these goals – but hardly the method.

This reality has been on full display in the recent past, as the legal and legislative system in Massachusetts twist and turns its way to consensus and legal enforceability of measures to accomplish this goal. Exhibit A in that effort has been the case of Commonwealth v. Zubiel, 921 N.E.2d 78 (Mass. 2010.) This defendant was convicted in Massachusetts Superior Court of electronically sending sexually graphic instant messages to a recipient that had identified herself via the instant messages as a 13 year-old girl named “Melissa QT 1995". Unbeknownst to Zubiel, “Melissa QT 1995” was an undercover state police officer. Zubiel texted “Melissa” that he was 25 years old, and the two agreed on a time and place where they would meet. Zubiel asked “Melissa” for nude photographs, questioned her about her sexual experience, and finally set up an in-person meeting with her. Zubiel was apprehended and arrested as he was walking toward an apartment building address which the undercover officer said “Melissa” lived at. The Commonwealth won convictions on four charges of attempting to disseminate matter harmful to minors under Massachusetts General Laws C. 272, § 28. Zubiel appealed those convictions, and the Supreme Judicial Court (SJC) reviewed the case on its own motion.

In a decision that enraged a lot of people, on Feb. 5, 2010, the SJC overturned Zubiel’s conviction. The justices agreed with Zubiel’s argument that “harmful material’’ banned under M.G.L. C. 272, § 28, the law in effect at the time, didn’t include instant messages or other forms of electronic communication. The reasoning: C. 272, § 28 provides: “Whoever disseminates to a minor any matter harmful to minors, as defined in section thirty-one, knowing it to be harmful to minors, or has in his possession any such matter with the intent to disseminate the same to minors, shall be punished. . . .” “Matter” is defined in G.L. C. 272, § 31, for purposes of § 28, as “any handwritten or printed material, visual representation, live performance or sound recording including but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances.” The court ruled that instant messaging and online conversations do not specifically fall under the definition of “matter” under § 31.

In response, the Massachusetts Legislature rapidly passed a bill amending the law, in an attempt to close the loophole. But then that fix itself ran into legal trouble – from predictable corners. The American Civil Liberties Union of Massachusetts, internet content providers and other groups filed suit in federal court against the state Legislature’s amendment, arguing that the reworded law was overly broad. They argued that the new law could effectively ban material from the internet that might be considered “harmful to minors,’’ but that adults have the right to view.

In October, U.S. District Court judge Rya Zobel agreed with them, writing that the proposed amendments to the law would violate the First Amendment. (And we can’t do that, can we? Because adult perverts have their rights, too …) I think you can see how I feel about this decision. As a Boston, Massachusetts sexual offenses attorney, I can and do appreciate that anyone accused of a crime must have the presumption of innocence, and that laws criminalizing any conduct must be narrowly drawn and so interpreted. But at what point does protecting innocent children from sexual molesters and perverts trump these otherwise legitimate concerns?

The current bill before the Legislature narrows the definitions further: It requires prosecutors to show that a suspected sexual predator intentionally and knowingly sent obscene electronic messages to someone he or she reasonably believed to be a minor. Under the proposal, a person who purposely disseminates sexually graphic material to a minor could be sentenced to up to five years in state prison. But the legislation clarifies that a person could not be prosecuted for sending a sexually explicit electronic message “unless he specifically intends to direct the communication to a person or persons he knows or believes to be a minor or minors.’’ The specific intent language is critical, because hopefully it will satisfy the “concerns” of the free speech groups that successfully challenged the earlier amendments, that the current law defines “harmful material’’ so broadly that it could be applied to websites that contain sexual material or nudity but are targeted only at adults, not children.

State Senator Cynthia Creem, Democrat of Newton, who is cosponsoring the current bill to correct the law, commented that “Predators can reach minors through a whole different mode”, and noted that the revised bill would address issues such as “sexting’’ — the texting of nude pictures — to minors — without interfering with the free speech rights of consenting adults. The American Civil Liberties Union of Massachusetts was, in my view as a Dedham, Massachusetts criminal defense attorney, more smug in its own response: Said John Reinstein, legal director of the American Civil Liberties Union of Massachusetts, “We think the bill will resolve the issues in the lawsuit’’ - while at the same time warning that the ACLA will not withdraw its federal law suit until the corrected bill is signed into law by the governor. In his statement, Reinstein said the ACLU of Massachusetts and the other plaintiffs in the federal suit are not trying to block prosecution of sexual predators who use the Internet.

That’s big of them.

Let’s hope this bill passes, and that we can bring a greater measure of protection for children against sexual predators … without “offending” the “free speech rights” of internet content providers. In the meantime, Attorney General Martha Coakley has stated that the re-worked bill will be one of her priorities for the legislative session that began in January.