Boston Criminal Attorney Blog

A 31 year-old Hingham Massachusetts woman was arrested by Braintree police last Tuesday and charged with possession of heroin and conspiracy to distribute a controlled substance. In addition to the woman, two men who allegedly sold the woman the heroin were also were arrested and charged with possession and conspiracy to distribute. Braintree police had received a tip about the alleged transaction, and had staked out the street, Logan Drive, where they reported observing the alleged Massachusetts drug offense.

Allegedly, the woman exited her car, conversed briefly with the two men, then got back in her own vehicle. Afterward, the two cars drove away in separate directions. Police intercepted both vehicles, and questioned the suspects. Two bags of what reportedly appeared to be heroin were allegedly discovered on the woman’s person, inside a cigarette pack. After being questioned by police, the woman reportedly stated that the two men who she spoke with on Logan Drive, had provided her the heroin. Noel Vazquez, 29, of Jamaica Plain and Orlando F. Negron, 31, of Dorchester were arrested and charged with distribution of heroin and conspiracy to violate the Massachusetts Controlled Substances Act. Additionally, Negron, who drove the vehicle, was also charged with operating with a suspended driver’s license, possession of a Massachusetts and Pennsylvania driver’s license with a false name. Aside from the more serious drug offenses involved hee, these Massachusetts motor vehicle violations also carry serious penalties. Negron was also charged with providing a false name to a police officer following arrest, and he has an outstanding warrant for drug and traffic offenses in Weymouth. $1,127 in cash was seized from the two men. The Hingham woman’s name was not yet available at the time of this writing.

I can assure my readers that Massachusetts drug offenses, from the petty and minor to the most serious, are charged in the courts throughout Massachusetts, every day. As a Dedham, Massachusetts drug offenses lawyer, I see it all the time. But what makes arrests like this stand out a little more is the fact that the defendant who is accused of buying the heroin, is from a very upscale, wealthy community. Most of the time when people hear of serious drug offenses involving substances such as heroin, they think of inner-city urban crime, often found in the gritty streets of crime-infested communities. I could name you such communities in Massachusetts, but I won’t. What I can tell you, though, is that the problem of serious drug use on the scale of heroin and cocaine, does indeed occur in wealthy suburbs, too – and reports like this illustrate that unfortunate point.

Two recent Massachusetts Appeals Court rulings have caused yet more confusion over probable cause standards that police must meet to be granted valid search warrants of a person’s home for illegal drugs. One recent case seemed to lower the bar somewhat for police seeking warrants to search a person’s home for illegal drugs, while another case seemed to suggest police must meet a higher standard before being granted a warrant. The rulings come in the wake of two very important decisions issued by the Massachusetts Supreme Judicial Court in 2009 regarding Massachusetts drug prosecutions, as those SJC decisions appeared to set the current probable cause standard for search warrants.

Those 2009 SJC decisions, Commonwealth v. Pina and Commonwealth v. Medina, seemed to establish the current probable cause test regarding warrants to search a person’s home for illegal drugs. That test, or standard, basically outlines how much evidence police must present in an application for a search warrant, before a judge can issue a valid warrant to search a person’s home for illegal drugs. Commonwealth v. Pina was the first of those two cases, Medina the second. In deciding Medina, the SJC cited its holding in Pina, which enunciated the principle that evidence establishing that a person may be guilty of illicit drug activity does not necessarily establish probable cause to search that person's home for illegal drugs.  Clarifying this, the SJC stated that “the fact that a defendant drives from his home to the location of a drug transaction, and returns to his home on the transaction's conclusion, with no other facts connecting the residence to drug sales, does not provide probable cause to search the residence.”  Commonwealth v. Pina, supra at 441, 902 N.E.2d 917.

Hence, Pina and Medina seemed to establish that the current test for this type of search warrant required a nexus between the observed activities of the defendant, and probable cause that illegal drugs were being either stored in, or sold from, the defendant’s residence. Those decisions made it harder for police to receive valid warrants to search a person’s home, and harder for prosecutors to use that evidence against a drug defendant.

Now, those important evidentiary standards are not so clear, as two more recent Appeals Court decisions seem to create only more confusion about what the current standard actually is for these types of warrants. One of these two cases, Commonwealth v. Escalera, 79 Mass. App. Ct. 262, held that police could secure a valid warrant to search a defendant’s home based on less stringent evidence than the SJC discussed in either Pina or Medina. In Escalera, evidence was seized from the home of a suspected Massachusetts drug dealer, pursuant to a search warrant obtained by police. The defendant argued that the seized evidence should have been ruled inadmissible, because police failed to demonstrate a “probable cause nexus” between his observed activities, and illegal drugs being stored in or sold from his home. The court ruled against him, holding that “The defendant was seen leaving and returning to his residence multiple times to what were either known drug sales or to encounters that could readily be inferred to be drug transactions. A pattern of activity such as this, in our view, provides sufficient nexus to a dealer’s residence to satisfy probable cause to search it.”

The ruling was 2-1, and the dissenting opinion argued that “a hunch is not enough under the particularized probable cause requirements of the Fourth Amendment to the U.S. Constitution and art. 14 of the Massachusetts Declaration of Rights.” Applying the SJC’s reasoning in Pina and Medina to the Escalera case, Judge Janis Berry wrote that police surveillance of Escalera’s single round-trip from his home in his car, where a drug sale took place away from his home, was insufficient to establish probable cause that illegal drugs were being stored in or sold out of his home. The majority ruling noted the obvious discord in this area of law, stating that case law on the issue of nexus and probable cause “no longer appears to provide useful precedent” and “would benefit from reexamination.”

Just one day after issuing Commonwealth v. Escalera, however, the Appeals Court then ruled the opposite way on an almost identical case, Commonwealth v. Dillon. In that case, Lowell police obtained four search warrants for a suspected oxycodone dealer’s two vehicles and his two residences after confidential informants provided information about that dealer’s activities. In their warrant application, police claimed that the defendant resided at two different locations. They alleged the defendant took drug orders from one residence, later delivering drugs by car. At the defendant’s second residence, sales records, $23,000 in cash and a firearm were seized by police. Prior to trial, the defendant sought to suppress evidence that police secured at the second residence on the grounds that the search warrant was defective. A Superior Court judge hearing the motion denied it. The Appeals Court overturned that ruling, holding that "the affidavit lacked sufficient particularized facts to establish a nexus between the defendant’s drug-selling activity and the [second] residence,” noting the warrant application contained only a general statement made by a single informant.

Hence, it’s obvious that in the area of evidence seized from homes of defendants charged with Massachusetts drug crimes, there is still too much grey area. Hopefully, the SJC will issue clarifying decisions in this key legal area. In the meantime, if you need to learn more about the law governing Massachusetts drug offenses, please contact my office for a free consultation. As a highly experienced Massachusetts drug offense attorney, my firm knows how to defend these cases.

In my previous post, I reported on the SJC’s ruling last week, restricting police authority to order the operator or occupants of a stationery vehicle to exit the vehicle, based solely upon the odor of marijuana. In their ruling, the SJC emphasized that the public’s approval in 2008 of the ballot initiative decriminalizing personal possession of an ounce or less of marijuana, was in effect a mandate that police and prosecutors concentrate their resources and efforts on serious crime.

It is this key point regarding the voters’ clear mandate in 2008 that police and law enforcement focus on serious crime and violent offenders, which I want to address now. I have blogged previously about the foolishness and counter productiveness of our present drug laws, state and federal. When it comes to marijuana alone, billions of dollars of taxpayer money are spent each year in this country, arresting and prosecuting an activity that has been proven scientifically, time and again, not just to be nor more harmful than alcohol, but far, far less harmful. As a Boston drug offenses lawyer, I have personally witnessed the waste of enormous police, court and prosecutorial resources, “chasing “this victimless, extremely benign recreational activity. Tens of millions of dollars are wasted each year paying police to chase and arrest, and then paying District Attorneys’ offices even more to prosecute, the use of a substance that is far, far less dangerous and far, far less harmful than a single can of beer.

These points have been argued rationally and responsibly for years now, by respected organizations such as the National Organization for the Reform of Marijuana Laws, which filed a supporting brief for the defense in this case. Time and again, NORML and state affiliates such as MassCann, have said that personal use of marijuana does not deserve the attention and the expense utilizing police resources that should inarguably be spent dealing with violent and predatory crime.’’

The relative medical safety of marijuana has been proven repeatedly, in a number of scientific journals. (I say “relative safety”, noting that any substance, if taken to extremes, can become harmful or toxic. To offer an extreme example, ingesting too much water could theoretically kill someone, as could ingesting too much food.) People blind to this fact need to shake off their blindness and political ideology, and consider their own observations since high school days. For myself, I can honestly and accurately say that in looking back over 30 years, and remembering all the friends that I knew who smoked pot as a teenage high school student, a college student, a 20-seonmthing, on into my thirties and 40’s. I have never known a single person to become “addicted” to pot. I’ve known people who have enjoyed it, but have never known anyone who became chemically, medically addicted to it. I compare that to the legions of people I have seen in my life become alcoholics. I’ve seen lives ended, lives ruined, and tragedy unrelenting from the use of alcohol. Yet I cannot recall anywhere near the same results with marijuana, and the scientific reason is clear: Pot is not addictive, and as far as harmfulness goes, medical studies have shown that a person would have to smoke the equivalent of at least a pack a day (approximately 24 cigarettes,) before risking lung cancer. Most people that I remember who smoked pot, smoked around 1 to 2 cigarettes a day, at most.

Despite all the scare tactics by opponents of decriminalization in 2008, the voters knew it then, and importantly, the justices of the SJC knew it when rendering this ruling. Let this landmark decision send a strong message to the Legislature, the Governor, to other states and to Congress: Marijuana policy to date has been flawed and foolish. Our tax dollars should be spent on pursuing, arresting and prosecuting violent crime and violent criminals, not on harassing innocent citizens for recreational use of a benign herb.

Not surprisingly, even in the wake of this landmark decision, Massachusetts police and prosecutors still don’t seem to “get it”: Their response to this ruling is to predict more Armageddon – the same kind they predicted in the 2008 ballot campaign. Commented Boston Police Commissioner Edward F. Davis. “I think this particular decision presents an enormous problem for us. We will be the only state in the country where this standard is in place. It just doesn’t make a lot of sense.’’ Hmm. Kind of like the way police predictions about decriminalizing pot never made sense. In saying this, I don’t mean to be sarcastic; I’m simply pointing out the unsupported foolishness of this kind of thinking. And the fact that I’m Boston criminal defense attorney doesn’t mean that I don’t admire a lot of police officials and prosecutors. In fact, I’m a fan of Suffolk County District Attorney Daniel Conley. I think he’s a fair-minded and responsible District Attorney.

I should note that while the 2008 ballot initiative decriminalized possession of one ounce or less of marijuana for personal, recreational use, as of present possession of more than one ounce remains a crime, as does “distribution” of pot. “Distribution” generally means the transfer or sale of more than one ounce. If you or someone you know has been charged with a marijuana offense or other Massachusetts drug offense, call us. We are very experienced in this area of criminal law, and we will make sure that your legal interests are protected to the maximum amount possible. We know how to defend these cases very well. Don’t choose just any lawyer: If the lawyer or law firm that is representing you is not extremely experienced in this area of law, you could end up in more trouble than you started with. If you or someone you care about is facing a Massachusetts drug offense, don’t make a mistake at this stage. Contact us for a free consultation.

This past week saw a major decision announced by the Massachusetts Supreme Judicial Court (SJC,) on the subject of the presumption of criminal conduct being associated with the use of marijuana. The ruling, Commonwealth v. Cruz, Mass. SJC No. 10738, overturns precedent, establishes a major new benchmark in this area of law, and represents a major victory for reasonable and logic-minded thinking toward Massachusetts marijuana laws. Given the importance of this ruling, I’m going to devote two parts to this post. Part Two will be published in a couple of days.

The ruling deals specifically, and for the time being only, with police officers’ authority to order the occupants of a parked vehicle to exit the vehicle, based only on the smell of marijuana smoke. At this time, the ruling appears to apply solely to circumstances where a vehicle is stationary, not moving, but the central point of the decision is that police and prosecutors can no longer presume that a person is engaged in criminal conduct, solely because officers may detect the order of marijuana in the air or on the person of a driver or occupant. The defeat of that presumption is an extremely important legal point in the development of sound and rational marijuana policy. These policies have been advocated by respected organizations such as Law Enforcement Against Prohibition (LEAP,) and others I will discuss in Part Two of this post, for years.

Some important background of the case that produced this key ruling: In the summer of 2009, two Boston police officers were patrolling in an unmarked car in the Jamaica Plain area. The officers pulled up to a car parked beside a fire hydrant; inside the car were a driver and a passenger. The officers testified that they noticed the driver in the car light a small cigar that they claimed is commonly used to mask the odor of marijuana. Approaching the vehicle, the officers claimed they smelled a “faint odor’’ of marijuana, and one of the officers asked the driver if he had been smoking. The driver answered that he had smoked some pot “earlier in the day.’’ Importantly, neither officer saw anything illegal in the vehicle, but claimed that the driver and the passenger both seemed nervous. The officers then radioed for backup and ordered the men out of the car, based solely on “the smell of marijuana and the way they were acting.” Forced out of their car, one of the officers then asked the passenger, (a Benjamin Cruz, then 19,) whether he “had anything on his person.’’ At that point Cruz responded that he had “a little rock for myself,’’ which turned out to be 4 grams of crack cocaine. Cruz was arrested.

A Massachusetts District Court judge ruled that the officers did not have appropriate legal grounds to order the passenger out of the car, based solely on the smell of marijuana, and nothing else. The Suffolk County District Attorney’s Office had argued that the smell of burnt marijuana itself was evidence of criminal conduct, and thus justified the officers’ exit order and any evidence that was discovered thereafter. Upon review, the SJC soundly rejected this argument. In a 5-1 ruling authored by Chief Justice Roderick Ireland, the court held that “Without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order.” (Underline emphasis added.) The justices cited three separate scenarios in which police officers could legally order a passenger to exit a validly stopped vehicle: 1) If the officers reasonably feel that they could be in danger; 2) If officers have a reasonable suspicion that an occupant of the vehicle is engaged in criminal activity; or 3) If they decide to search the vehicle. Affirming the District Court’s ruling, the SJC held that the officers in the case did not have legal grounds to order the passenger out of the car, because they “could not have reasonably feared for their safety considering the stop occurred during daylight, the defendant made no furtive or threatening movements, and the defendant was not known to the officers from previous arrests.’’

The court then turned to the 2008 state ballot law passed by voters in 2008, which resoundingly decriminalized personal possession of one ounce or less of marijuana. With this landmark ruling, the justices answered a lingering question regarding police conduct since the ballot initiative became law. In very pointed language, Chief Justice Ireland wrote that voters, in passing the 2008 ballot question, clearly intended that possession of an ounce or less of marijuana “should not be considered a serious infraction worthy of criminal sanction.’’ The justices noted that “There are no facts in the record to support a reasonable suspicion that the defendant possessed more than one ounce of marijuana,’’ they ruled. “We conclude that, to order a passenger in a stopped vehicle to exit based merely on suspicion of an offense, that offense must be criminal.’’ Quite noticeably, the court went on to emphasize that “Ferreting out decriminalized conduct with the same fervor associated with the pursuit of serious criminal conduct is neither desired by the public, nor in accord with the plain language of the statute,’’ Roderick wrote. (Underline empasis added.)

I'll publish Part Two of this Post, by Wednesday April 27 2011.

An arrest at Logan Airport earlier this week, alleging a Massachusetts drug offense, highlights an increasing problem in our nation’s increasingly ineffective “War on Drugs.”

The arrest and charges involve a drug mule. A “mule” is a drug courier, who more often than not is not suspected of being a drug dealer, or being a significant player in drug trafficking operations. Notwithstanding, the “mule” is the person who is charged with the crime of introducing the drug into Massachusetts. The mule in this case is one Karen Morla-Ramos, 22, a Dominican native who was arrested at Logan last Sunday, March 27 2011, after arriving on a JetBlue flight from Santo Domingo. State Police said they conducted a pat-down of Morla-Ramos after she acted suspiciously and found 1,040 grams of cocaine in a diaper-like garment she was carrying. It is often the case – though not always - that such “mules” have been forced, or at least pressured, by dealers in their home countries who are the kingpins and major players in the drug trade, to act as mules. Violence reigns in the drug trade. Very often, major drug dealers and traffickers in countries that are known to export illegal drugs, threaten or extort citizens of that country who are (quite literally) dirt poor and have no resources, to transport these drugs into the U.S., or face unthinkable results.

It’s not uncommon for a major drug trafficker to “loan” money to a poor family in a Third-World country, then come calling for repayment with huge interest suddenly attached to the loan. When the debtor can’t pay, they’re given a choice: Satisfy the debt by transporting drugs into the U.S. – where the major money is made – or face horrible consequences: The kidnapping or murder of their loved ones, or their own death. In circumstances less physically violent, but just as economically violent, poverty-wracked residents of Third-World countries such as the Dominican Republic, are offered what is billed by a major drug trafficker as “easy money”, to transport drugs aboard a flight to the U.S. While they know this is an illegal act, most of these “mules” are ignorant, uneducated, inexperienced, and uninformed about just how severe the risk is to them. Those realities don’t excuse the acts of these couriers, but it should, in fairness, provide some context.

The preferred smuggling method for most of these foreign drug cartels and kingpins is to have the courier swallow rubber packets of illegal drugs – usually cocaine or heroin – which (if the courier is lucky,) are later defecated, intact, after the courier's arrival in the U.S. To make the transport financially “effective” for the trafficker in the originating country, dozens of these rubber packets must be swallowed by the courier – one by one. If just one packet were to either burst or become otherwise perforated inside the person’s digestive tract, death would almost certainly ensue. To illustrate just how violent the illegal drug trade is, if the ingested packets became for some reason trapped in the courier’s digestive system, or the courier could not eliminate all of them from his body, dealers on the U.S. end, who meet the courier at the airport, house them and guard them until all packets are eliminated and accounted for - will kill the courier and cut out the drugs from the dead body.

The barbarity and savagery of this business are fueled by the enormous profit involved – profit created by one things: Prohibition, which creates the black market in the first place. I’ve written previously about how drug prohibition causes far more crime and resulting misery than responsible legalization, regulation and taxation would ever cause, but that’s another story – and a lengthy one. For very authoritative and concise presentations of that argument, visit www.leap.com; Law Enforcement Against Prohibition is an organization of former police and law enforcement professionals, lawyers and judges who are committed to the reality that making drugs illegal only costs society far, far more in terms of tragedy and economic loss than legalization, regulation and taxation ever would. Take a look at their site.

Back to today’s post: Increasingly, traffickers in exporting countries have chosen women to act as these mules. Like bombing terrorists, they apparently assume that a woman would not typically be suspected of being involved in such an illegal act. This was portrayed very clearly in a recent film called “Maria Full of Grace”, which told this kind of story quite well.

The irony is that it is often the courier or “mule”, who bears the legal brunt of all this activity - nowhere near as much as the major traffickers and cartel operators abroad. Though not always, very often it is the major players in the exporting countries that remain out of reach of Massachusetts law. And the legal penalties for these couriers are extremely severe. Massachusetts drug laws provide for mandatory minimum sentencing for many of these offenses. For example, for anyone convicted, (or agreeing to a plea that legally equates to a conviction,) of transporting cocaine in excess of 200 grams into Massachusetts, that person faces a mandatory minimum sentence of 15 years in state prison; M.G.L. Ch. 94C, Sec. 32E. Most cases involving mules from outside the U.S. trigger these mandatory sentencing provisions, simply due to the high amounts of the drug introduced into Massachusetts, in order maximize drug profits (penalties increase in relation to amounts of a drug seized.)

I’ve blogged previously about the unfairness of unproductiveness of mandatory minimum sentencing, which ties judges’ hands regardless of the underlying facts of a case. But what can often make matters worse, is the the real “bad guys” in this drama – the cartel operators and major traffickers – often remain untouched. But that doesn’t change existing Massachusetts drug laws, and as a Boston, Massachusetts drug offenses lawyer, I use over twenty years’ experience in providing my clients the best legal defense possible.

Not because all these clients are innocent, but because one of them might be.

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.

Just last week, I criticized Gov. Deval Patrick for his proposal to change the way public defenders are provided for indigent criminal defendants. Today, I want to do just the opposite: Commend him for another of his proposals dealing with criminal law.

Specifically, Gov. Patrick should be lauded for his legislative initiative to repeal the current law in Massachusetts that requires mandatory minimum jail and state prison sentences for anyone convicted of “dealing” drugs in a “school zone.” I’ve blogged and spoken previously on the foolishness of mandatory minimum sentencing, which almost always results from a Legislature pressured to act on largely misdirected public anger following high-profile crimes. Several years ago, that public pressure descended on the Legislature primarily due to inner city frustrations over the problem of drug dealing in urban areas; specifically, from parents' fears that drug dealers were actively targeting young school children to sell drugs to. The result? The Massachusetts Legislature passed a law that required mandatory minimum jail sentences for anyone convicted of any kind of an offense involving a controlled substance or otherwise illegal drug.

Care to know just how harsh and unjust this law is? If anyone is convicted – whether following a trial or if a defendant otherwise enters a pre-trial plea equating to a “conviction” – of a drug offense occurring within 1000 feet of a school, that person is automatically sentenced to anywhere from two to 15 years behind bars. If the term is 2 ½ years or less, the sentence can be served at a county House of Correction; If it is more than 2 ½ years, the sentence must be completed at a State Prison – and that is extremely severe. I don’t think anyone – least of all a clueless Legislature not known for its collective intelligence – realizes just how great a distance 1000 feet really is. Let me put it in sports terms: Would you think that a football field is a long distance? It’s 300 feet. 1000 feet is over three football fields in length. The idea behind this law was, supposedly, to prevent drug dealers from targeting children in (largely urban) schoolyards and school grounds. Instead, it has done two things: 1) Created a foolishly large, expansive distance to measure an alleged drug crime from in relation to any school, and 2) Included in that law, any drug transaction deemed illegal, no matter how minor.

That means the following: If you or someone you cared about were charged with and convicted of selling a nickel or dime bag worth of marijuana to a friend – over three football fields away from a school and with no intent whatsoever to sell to any children – that person would automatically be sentenced to a minimum of two years in jail, and quite possibly more. The judge would have no say in the matter. If a conviction – even a plea otherwise amounting to a conviction – were entered, the judge would have no choice but to sentence the defendant to the mandatory minimum jail time. As a Dedham, Massachusetts drug offense lawyer, I've seen it happen on far too many occasions.

That’s the kind of foolish, unintended consequence that can result from shortsighted mandatory minimum sentencing laws. This law is unjust, unwise, and has resulted in hundreds and hundreds of jail cells being filled with nonviolent offenders – instead of violent criminals. That’s why Massachusetts’ jails and state prisons are bursting at the seams. We need those jail cells for violent and dangerous offenders, so that the public can be protected from them.

As a Dedham, Massachusetts criminal defense lawyer, it’s amazing to me that more informed observers can’t make the connection between why parole officials might wish to create space in our prisons, and why those prisons are so over-crowded in the first place.

Gov. Patrick’s proposal calls for shrinking that “drug-free zone” from 1000 feet of a school, to 100 feet. The Massachusetts Bar Association has endorsed this idea, as have several leading criminal defense lawyers. The one party opposed is Attorney General Martha Coakley. Her reasons, couched in boilerplate crime-fighting language, are unsupported by the facts. This proposal should pass, intact, and soon.

Mandatory minimum sentencing laws are horrible ideas. Judges should be allowed to retain the sentencing powers that are inherent in their important positions. They should not be handcuffed, forced in many instances to watch justice manhandled out the door.

Media Reports that Boston police seized almost a ton of marijuana earlier this week, will be seized on by marijuana opponents as dramatic evidence of a serious problem in our society – one that must be eradicated no matter what the cost to taxpayers, no matter what the waste in police and prosecutorial resources. From these corners, I’ve heard comments that say this is “Proof of how much of a problem we’ve got.”

I’ll agree we have a problem: But it isn’t the amount of pot that’s stored or circulating in Massachusetts, and isn't Massachusetts crime – it’s the wasted financial and human resources that we spend trying to punish something that, when carried in modest amounts, isn’t even criminal anymore in this state. It has always struck me as amazing, how diehard opponents of marijuana can neither see nor learn from the lessons of this country’s failed, regrettable and ultimately tragic efforts at Prohibition in the 1930’s. That ill-conceived effort created more collateral crime, and caused more loss, deaths and heartache than had ever been conceived before its passage.

Criminalizing alcohol only spawned more crime, in the form of “protection money” to hide alcohol supplies; extortion to keep public officials and others silent about the use and location of it; and smuggling rings operated by organized crime (ever wonder where the name “Smuggler’s Notch” in ski country came from? It was a route alcohol smugglers used to illegally bring the product down from Canada, into New England.) These collateral activities resulted in violence, shootings and death on a shocking level. Police raids were conducted of ‘Speakeasies” where otherwise lawful people had to hide in basements just to socialize with a drink; “Dealers” came to prominence, who used violence to keep their territories and supply intact; Gang and turf wars were created, by competing underworld networks who battled to control the supply and availability of alcohol. Prohibition gave birth to Al Capone, fertilized and nurtured organized crime, and cost the nation and the states enormous money and law enforcement resources. The entire effort was a massive public policy failure, costing untold amounts of money and ruining many lives in the process. The federal government finally realized this failure, and made the sound decision to legalize the substance, regulate it, and tax it. Officials finally saw that any substance can be abused, that as human beings we are somehow pre-disposed to to seek relaxation from various natural substances, and that regulation and taxation of these products is the far wiser, more rational course than fighting something that cannot be defeated.

Why can’t opponents of marijuana legalization see obvious lessons learned here? In this recent pot bust of almost a ton of marijuana, many law enforcement officials see evidence of a widespread problem. I see evidence of millions of dollars in tax revenue lost to the state of Massachusetts, had we the intelligence to see that this substance is no more harmful than alcohol, and had the common sense to regulate its commercial sale, and tax it. As to the issue of harmfulness, it is a fact that, on a level of addiction potential – marijuana is far less harmful than alcohol. I see evidence of law enforcement resources that are wastefully re-directed to “combating” a substance that has been decriminalized by public referendum in Massachusetts, when carried in small amounts (an ounce or less.) I see police officers that could be combating serious crime – Massachusetts murders, Massachusetts rape and sexual offenses, robberies, sexual abuse of children, and truly serious Massachusetts drug offenses such as heroin and crack distribution (which, without a doubt, should be illegal.)

I see District Attorneys’ offices and staff prosecutors across Massachusetts who could be spending their time and talents (and tens of millions of dollars) on prosecuting violent crime and domestic abuse. While many law enforcement and District Attorneys’ offices will point to the sheer amount of pot found in this seizure and cite this as evidence of the ‘enormity’ of a ‘problem’, I see that amount being distributed (as alcohol is now legally) to a lot of recreational users across the state, largely in small quantities. Do the same people who dramatize that it was “a ton” of marijuana seized, realize how much all the alcohol sold in Massachusetts just this very day would weigh or amount to, if it were measured? Far, far, more than a ton – yet alcohol is legal, regulated, and taxed. And in this ton of marijuana, all I see going up in smoke is critically needed tax revenues that could be used to fight serious, violent crime. It is these tax dollars that could instead go to house the homeless, feed hungry kids, protect victims of domestic abuse, provide greater access to health insurance programs, and a host of several other laudable objectives. Instead, this money is used to prosecute users of a largely harmless substance that has been decriminalized in this state.

And in case opponents of this opinion think this view is without support, I’d suggest they review the opinions of a widespread (and widely respected) national association of major retired law police and enforcement officials, who share this view and advocate legalization, regulation and taxation of marijuana. Their organization: Law Enforcement Against Prohibition (LEAP).

In the interests of full disclosure, I think I should make it clear: I personally do not smoke marijuana. But based on over 35 years of observing others who have used marijuana (whether in college years, or afterward,) I do not believe this substance is especially harmful; I have yet to see anyone become “addicted” to its use in the widespread manner that I have seen alcohol addict countless people I know and have known. I simply view this as a civil liberties issue. In my professional career as a Boston criminal defense lawyer over 20 years, I have seen more examples of police and court resources wasted on marijuana prosecutions than I care to recall. I’m confident that if I were ever considered for a judicial appointment in Massachusetts, marijuana opponents would cite this post as a reason against my appointment to the bench. My position as an attorney and officer of the court in Massachusetts has always been clear: Criminal law must be adhered to, and I remain committed to that view. But the legislature should wake up to the public referendum approving decriminalization of marijuana, wake up to our deteriorating state revenue posture, and use common sense on this subject.

Here’s an interesting case that might fall under the tagline, “Don’t answer that phone!” In a case that illustrates occasional over-reaching by police officers in their attempts to secure evidence of criminal wrongdoing, a Massachusetts Superior Court judge recently ruled that evidence, obtained by police officers who answered a defendant’s cell phone while he was being booked, cannot be admitted as evidence against that defendant.

It’s a case that some people might say warranted the admission of the evidence obtained by the police, but constitutional principles say otherwise. It seems that last December 15 2008, Lynn police officers on patrol spotted one Felipe Diaz and a passenger, driving in Diaz’ older-model pickup truck. One of the officers recognized Diaz from prior encounters with the Lynn Police Department, also recognized his truck, and knew that Diaz’ drivers license had been revoked for previous Massachusetts motor vehcile offenses. The officers stopped Diaz, arrested him for operating without a license, and placed him in handcuffs in the police cruiser. Diaz’ passenger was interviewed and allowed to leave. The officers had Diaz’ truck towed, and consistent with standard police procedure, conducted an inventory search of the vehicle. They discovered seven small bags of heroin hidden behind the front seat.

While he was being booked at the Lynn Police Department, Diaz’ cell phone rang several times. After “four or five” calls came in from different numbers within approximately twenty minutes, different officers at the station answered the phone, obviously acting as though they were the phone’s owner. One officer claimed, that a female caller say, "I'll take three.",at which Diaz yelled out "I'm at the police station." A separate officer answered another call and spoke with a man who identified himself as "Mike." According to this officer, this caller made "statements indicating an interest in buying drugs.” Aside from the possession charge on the heroin located in his truck, as a result of these phone calls, the defendant was charged additionally with “Intent to distribute,” which is an even more serious Massachusetts drug offense. Prosecutors introduced evidence of these calls in support of the “intent to distribute drugs” charge. Diaz’ defense attorney objected, filing what is called a “Motion to Suppress."

A Superior Court judge agreed with the defense.The central issue here, as almost always in “Suppression Motions,” was a constitutional one. The core of the defense’s argument here, was that the defendant had a legitimate “expectation of privacy” in his cell phone calls, and that, without a warrant, the officers use, manipulation, or examination of that phone, was an impermissible violation of the defendant’s constitutional right to privacy. The important element that lacking here – which if the police had it, might have resulted in the phone calls coming into evidence – was “probable cause” for the officers to answer the defendant’s cell phone. The court ruled that the police didn't have this 'probable cause', and as a result, any evidence obtained from the police answering those calls, is inadmissible. In his ruling on the defense’s suppression motion, Superior Court judge David A. Lowy wrote, "To allow government agents to answer a cellular telephone without a warrant under such circumstances would allow just the sort of ‘indiscriminate search ... conducted under the authority of "general warrants"' that courts are constitutionally bound to prohibit.” Exceptions to the normal requirement of a search warrant do exist, but Lowy found none under these circumstances. "The court agrees that the officers could not lawfully conduct a warrantless search of Diaz's cellular telephone where the facts known to them at the time they were booking Diaz did not create probable cause to believe that he was selling heroin through his telephone," he wrote.
By answering the defendant's phone, Lowy said, the Lynn police "... intruded into an area in which society recognizes a reasonable expectation of privacy."

Some people might find this judge’s reasoning to be shallow. I can understand that – especially when considering that cell phones are an acknowledged tool involving drug trafficking. The courts do recognize this fact, and in the past police have been allowed to glean evidence from cell phones, without a warrant, under limited circumstances. But this judge concluded that the police officers’ actions in answering the phone during booking, was unreasonable on several grounds. First, "The search of the cellular telephone was not contemporaneous with Diaz's arrest. A substantial amount of time elapsed between the moments when Lynn police took Diaz into custody ... and when the officers began answering his ringing cellular telephone at the station," Lowy wrote. Second, "By failing to identify himself immediately, an officer can take advantage of a caller's reasonable expectation that the person answering the cellular telephone is its owner and engage in the functional equivalent of eavesdropping, if only for a moment." Third, the prosecution was unable to demonstrate "the necessary link between evidence of criminality" and the phone.

Interpreting this ruling, the bottom lime is that the arresting officers “had no principled way of distinguishing between incoming calls to Diaz's cellular telephone that were likely to be perfectly lawful, and those calls that might produce evidence of criminality." The police did not have probable cause to justify a warrantless search of Diaz's cellular telephone for the purpose of securing evidence of an intent to distribute heroin. Accordingly,the court ruled that "the statements made by third parties to the officers who answered Diaz's cellular telephone, and Diaz's statements themselves, must be suppressed."

As I said above, I can see how a good number of people, especially police officers, would disagree with this ruling, arguing that it was reasonable to think that if a person was just arrested with a good deal of illegal drugs, and his cell phone rings several times while in custody, that person is probably dealing drugs. But as a Norfolk County, Massachusetts criminal defense lawyer, the correct way for police to have to handle that, under those circumstances, would have been to apply to a judge for search warrant to answer and manipulate this person’s cell phone. Those prescribed legal procedures must be followed. If we allow constitutional protections to be ignored, then slowly, over time, the protections we all enjoy could one day disappear.

And I don’t think anyone wants that.

In a ruling affecting a wide variety of criminal law cases in Massachusetts, especially drug crimes, the U.S Supreme Court has ruled that lab reports offered as evidence by prosecutors will henceforth require the in-person testimony of lab technicians at trial.

The landmark ruling had its origins in a routine Suffolk Superior Court drug prosecution taking place in 2002, and made its way all the way to the United States Supreme Court. In that Suffolk Superior Court trial, prosecutors sought to introduce lab certificates accompanying two batches of drugs recovered by police in the case. The defendant’s defense attorney objected, citing a recent U.S. Supreme Court ruling that these types of reports fall within the “Confrontation Clause” of the U.S. Constitution. The Confrontation Clause requires the appearance of live witnesses against a defendant in a criminal prosecution, as the Court ruled in the 2004 case Crawford v. Washington.

The judge hearing the case at that time, then-Superior Court Judge Barbara J. Rouse, overruled the defense objection, and allowed the lab certificates to be admitted into evidence pursuant to Massachusetts General Laws Chapter 111, Sections 12 and 13, which requires the Massachusetts Department of Public Health to “make … a chemical analysis of any narcotic drug … when submitted to it by police authorities … provided, that it is satisfied that the analysis is to be used for the enforcement of law.” Section 13 states that the “presentation of such certificate to the court by any police officer … shall be prima facie evidence that all the requirements [of section 12] have been complied with.”

At trial, prosecutors introduced the lab reports asserting that the substance inside the bags that were recovered by police was cocaine. The lab technicians who wrote the report did not appear as witnesses at trial. Without success, the defendant’s lawyer objected to the reports being allowed as evidence, arguing that the unavailability of the laboratory technicians who wrote the lab reports, for cross-examination, violated the defendant’s rights under the Confrontation Clause. No luck: The defendant was convicted and sentenced to a three-year to three-year-plus-one-day state prison term.

In an unpublished decision, the Massachusetts Appeals Court affirmed the Superior Court Judge’s ruling, and later the Supreme Judicial Court denied review without comment. The defendant then appealed to the U.S. Supreme Court for review, and the case was accepted for review (very, very few cases are accepted by the court for review.) In a 5-4 ruling authored by Justice Antonin Scalia, the court reversed the conviction.
Scalia wrote, “Under our decision in Crawford v. Washington, the (laboratory) analysts’ affidavits were testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that [the defendant] had a prior opportunity to cross-examine them, [the defendant] was entitled to ‘be confronted with’ the analysts at trial.” Justice Anthony M. Kennedy wrote the dissenting opinion, was joined by Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer and Samuel A. Alito Jr.

Massachusetts Attorney General Martha Coakley, who personally argued the case, said she was “very disappointed” with the decision. “It is particularly disappointing that the majority failed to appreciate that its ruling today will significantly burden our ability to prosecute countless drug cases in the Commonwealth’s courts,” she said. Although we are still reviewing the implications of today’s decision, our office is prepared to work with other law enforcement officials in the Commonwealth to adjust our practices to comply with this new constitutional rule while still holding accountable those who violate our drug laws.”

As a Massachusetts drug crimes defense lawyer, I believe this U.S. Supreme Court ruling to be the fair and correct one. I acknowledge that producing laboratory technicians, in-person, for every criminal trial where they are needed, will be cumbersome and at times difficult. But it is a superior option to trumping the rights guaranteed by the U.S. Constitution.

As the Enterprise News made clear in an editorial last week, change begins with telling the truth. And the truth on this subject – the glaring truth – is that drug crime polices, both in Massachusetts and across the nation – have been essentially a complete failure, and a waste of hundreds of millions of dollars in law enforcement, prosecutorial and judicial resources.

The report I’m referring to, released Thursday June 18 2008 by the Massachusetts Bar Association, places the truth front and center. The report's title: “The Failure of the War on Drugs.” This study, which is the result of more than a year's work by a task force of respected lawyers, law enforcement and mental health professionals, comes to the conclusion that state politicians have almost universally ignored: Massachusetts’ drug laws and policies, like so many other states, are “wasteful, ineffective and cruel.” As a Massachusetts drug offenses lawyer, I can attest to the accuracy of that conclusion.

Among the task force’s findings:

• Drug ‘education’ programs fail to teach anything useful and show no signs of preventing drug abuse;
• Addiction treatment programs are underfunded and out of reach of those who need them most.
• Incarceration isn't an effective deterrent to drug use or to recidivism, and never has been.
• Most of those who are imprisoned for drug-related crimes receive no treatment and, thanks to mandatory minimum sentencing laws (which I’ve blogged about previously,) receive no post-release supervision.

Does anyone wonder so many ‘offenders’ them find themselves behind bars again?

Even those who don’t tolerate alcohol or drugs should care about the massive public finances and judicial resources wasted on policies that don't work. Between 1980 and 2008, the state's prison population rose by 368 percent and the county jail population grew by 522 percent. Why? Largely due to mandatory minimum drug sentencing laws, that’s why. Believe me: I’ve seen the most inoffensive people, who might have been caught selling a small amount of marijuana to a friend within 1000 feet of a school, go to jail in a heartbeat as the result of these laws: People no more dangerous than you or me. Have mandatory drug sentencing laws like these reduced serious drug-related crime? You’d be a fool to think so. As a Massachusetts criminal defense lawyer, I can assure you they have not. I've seen judges shake their heads in regret at being forced (that's where the "mandatory" comes in - it takes away a judge's sentencing discretion) to sentence a non-dangerous, low-level frug offender to jail time.

What should be done? I’ll talk about that in my next post.

When will this end?

Recently, a handful of cities and towns in Massachusetts have begun efforts to develop municipal ordinances and bylaws that would punish public possession of an ounce or less of marijuana, above and beyond the state civil fines that were approved in the November 2008 ballot measure that decriminalized possession of an ounce or less of pot. That measure (Question 2 on the November 2008 ballot) was overwhelmingly approved by state voters, by a 2 to 1 margin. That measure made possession of an ounce or less of pot a civil offense punishable by a $100 fine, with minors required to attend a drug awareness program. It also requires forfeiture of the pot found on the person. Yet some opponents, including law enforcement officials, claim the law is “poorly written” and unenforceable. I find this claim to be specious at best, and far more likely generated by the law enforcement community’s resentment that the public took away some of the powers that they had before pot was decriminalized through this ballot initiative. But the result has been that some cities and towns, with the encouragement of Police Departments, have begun to craft their own bylaws and ordinances to add their own, local, fines for public possession of an ounce or less of pot. Defenders of the new state law fear these efforts might presage a wider effort toward recriminalization. I don’t blame them.

As a Massachusetts drug offenses defense attorney, it was in my economic and professional interest to oppose the ballot initiative decriminalizing pot. But as a lawyer, a former Special Assistant District Attorney and taxpayer, I can’t support arguments to keep this a criminal offense. Tens of millions of dollars were wasted each year in this state, in the arrest and prosecution of a victimless “crime” that many respected authorities consider to be of an extremely minor nature. The new law retains all the punishments for driving while under the influence of pot, as it did before, and as now justifiably apply to driving under the influence of alcohol or any other drug. The new law retains all the previous penalties and punishments for trafficking and distributing large amounts of the drug as it did before. The new law requires minors to attend a drug awareness program and requires anyone fined, to forfeit the pot they might have on their person. A national organization of present and former law enforcement professionals, Law Enforcement Against Prohibition (LEAP), publicly supports decriminalization of an ounce or less of pot, publicly testifying that hundreds of millions of taxpayer dollars are wasted each year, on an offense that is extremely minor.

Why can’t these opponents of reasonable, measured reform, who are now spending so much time, effort and money to find an “end-run” around the new state law, put away their “chicken little” scripts, and devote their attention to obviously far more serious public safety problems in our midst? Problems like violent crimes, victims of abuse, and homelessness? Why can’t they open their eyes and see that Massachusetts is not the first state to decriminalize marijuana possession – 12 others have done so – all without experiencing any of the dramatic “sky is falling” consequences promised by opponents?

Memo to police departments and the Chicken Little crowd: The sky is not falling, and it isn’t going to. We have bigger and far more serious crime and punishment problems to tackle. So let's do it.

In my last post on this subject, I explained the legal changes soon to take place in Massachusetts (probably early January 2009) in the area of marijuana possession and use. Police officials in Massachusetts, understandably, are now publicly expressing concern that they have no idea exactly how to enforce this new law. Among the questions they have:

• How will police officers on the street accurately measure what constitutes one ounce of pot? Should each police cruiser have a measuring scale in it? If the pot is rolled into cigarettes, how many joints equal an ounce?
• If a vehicular stop occurs and pot is found, does that give officers probable cause to search the vehicle for evidence of criminal activity or contraband? Will any such searches withstand legal challenges?

These questions are legitimate, and the Attorney General, in conjunction with the Commonwealth’s 11 District Attorneys, can and should develop appropriate enforcement guidelines for the state’s 351 municipal police departments, and the state police. But let’s not hear too many cries that the sky is falling: Revised criminal laws are nothing new in this state, or anywhere. Previous criminal statutes have been revised to incorporate, or “morph” into a civil regulatory structure in the past, and worked well. I see little reason to believe that can’t be done here. Many respected authorities within this debate made the legitimate argument that tens of millions of dollars and thousands of professional hours per year from police officers and District Attorneys’ offices, were mandatorily spent on prosecuting an offense that many respected observers consider to be minor in nature.

Was this a wise and effective use of our collective tax dollars, when serious crime surrounds and infects many of our cities and towns every day? Many think not. In the past week alone, more than one District Attorney’s office in Massachusetts has announced that budget cuts are forcing them to lay off several prosecutors in their offices. Those prosecutors who are not laid off, will be forced to bear even heavier caseloads. With homicides, rapes, gang warfare, robberies and violent criminals plaguing so many prosecutors’ already-strained offices, we need prosecutors concentrating their resources on the real “bad guys” among us, not on someone carrying a few joints for his or her own private use.

In my opinion as a Massachusetts criminal defense lawyer, this is not a liberal or a conservative view, neither a lenient nor a tough one. Only one of common sense.

Now that voters in Massachusetts have overwhelmingly approved (by a 65% to 35% margin) last week’s November 4, 2008 statewide ballot initiative, it falls to the state’s chief prosecutorial and law enforcement officials to “iron out” the new procedures and legal protocols necessary to shift away from the decades-old criminal law enforcement scheme for marijuana possession. Presently, that criminal statute provides for maximum penalties for up to six months in jail and a $500.00 fine, for possession of any amount of marijuana. The new law will decriminalize possession of one ounce or less of pot, and instead provide for a civil fine of $100.00 in its place. The law presumes that a person found in possession of one ounce or less of marijuana has no intent to distribute (i.e., is not a dealer) and intends the substance for personal use only.

On the issue of decriminalizing possession of small amounts (one ounce or less) of marijuana, it seems that the public appears to have been ahead of the politicians here: All 11 of the state’s District Attorneys, the Massachusetts Chiefs of Police Association, Attorney General Martha Coakley, Governor Deval Patrick, a wide range of state legislators, and an equal complement of leading religious leaders, all spoke out actively in opposition to making possession of less than one ounce of pot a civil offense. (Notably, so too, editorially, did the Boston Globe.) Despite this, voters approved this measure by an almost 2-to-1 margin. Whether in agreement or disagreement with this ballot result, few responsible people can argue that the result isn’t a voter mandate. The approved ballot measure will become law 30 days after being presented to the Governor’s Council, which usually meets in late November or December. That means the new law will take effect probably in early January 2009. Until the date the new law takes effect, the present law governing possession of any amount of marijuana remains in effect.

People should understand several important points: First, the new law only partially decriminalizes possession of marijuana (one ounce or less,) and the new law isn’t quite as lenient as it seems: Anyone caught with an ounce or less of pot will be forced to forfeit the marijuana, as well as being assessed the civil fine of $100.00. (Exactly where this confiscate pot will end up, is anyone’s guess, notwithstanding regulations that I am sure will soon be developed.) In addition, anyone under the age of 18 caught with an ounce or less will not only have to forfeit the pot, but if they don’t complete a mandatory drug awareness program, the fine they face will be ten times the normal fine: $1,000.00.

I’ll have more on this new law in my next post on November 13 2008.

Looking ahead to possible legislative changes to criminal law in Massachusetts, in November voters here are going to have an opportunity to vote on more than just the presidential election alone. One of the ballot questions in Massachusetts will ask voters if possession of a small amount of marijuana (one once or less) should be de-criminalized. The Committee for Sensible Marijuana Policy (CSMP) has secured over 20,000 signatures in support of placing the measure on the November ballot. Assuming the state secretary can verify 11,099 of those 20,000 signatures, the question will appear on the ballot, which at this date appears very likely. The voters’ decision on that ballot would be binding (i.e., if passed, the measure would become law.) Last fall, CSMP collected over 80,000 signatures from all 351 cities and towns across Massachusetts, 15,000 more than required by law, in order to place the ballot question before the legislature in Massachusetts (a separate requirement in the initiative petition process.) Representatives of CSMP have pointed to the high amount of signatures received from across the state, as evidence of the broad-based support for changes in this area of law.

Predictably, opinions run strong on both sides of the question. Many people, among them prominent medical and health authorities, believe that marijuana use is less harmful and less addictive than is alcohol use, or cigarette smoking. CSMP argues that each year in Massachusetts, over 7,500 people are arrested for a crime that they contend is harmless and victimless. In addition, supporters of the measure argue that under existing law, enormous police and prosecutorial resources are directed each year in Massachusetts to prosecute this crime – to the tune of $24 million in state and local money annually. Under Massachusetts law presently, the penalty for marijuana possession is a maximum of six months in jail and a fine of up to $500.00. While most persons charged with this crime receive a minimal sentence or probation, offenders do receive a criminal record, and that record becomes part of the Criminal Offender Records Information (CORI) system. CORI records are available to lenders, housing agencies, and employers, who can use this information to deny an applicant credit or housing. Following a conviction for this offense, college and graduate students can be denied student loans or have those loans.

It is important to note that the proposed measure would not ”legalize” possession of marijuana –it would decriminalize possession of one ounce or less (an amount which is presumed to be for personal use only, and not for distribution.) The proposed law would replace the current criminal penalties, and substitute in its place a civil system of fines, similar to vehicular speeding fines. Each offense would incur a fine of $100.00. In support of its position, CSMP argues that, in fact, its ballot measure is the more moderate of several marijuana reform efforts currently being debated. MassCann, which is the sate’s chapter of the National Organization for Reform of Marijuana Laws (NORML,) endorses CSMP’s goal, but believes even broader, more substantive changes in this area of drug law should be made. Specifically, MassCann believes that marijuana should not just be decriminalized, but be simply legalized and taxed appropriately, just as are alcohol and cigarettes.

As a Boston criminal defense attorney, I must say I see an enormous amount of police and prosecutorial resources currently directed toward arresting and prosecuting people for this crime. A credible argument can be made that these significant efforts divert police officers and prosecutors away from protecting people from “real” criminals. The Massachusetts District Attorneys Association has formally opposed the ballot initiative, arguing that decriminalization of marijuana will increase its use among young people, and citing federal drug control arguments that car accidents are much more likely when a driver has used pot. As a Massachusetts drug arrest defense lawyer, I can see both sides of the argument. However, this ballot measure doesn’t seek to decriminalize marijuana use while driving – that act can and would remain a criminal offense – just as driving under the influence of alcohol or other drugs is a crime. The measure seeks only to decriminalize possession of a very small amount of marijuana – an ounce or less – while not operating a motor vehicle - and impose in its place a $100.00 civil fine. When weighing the arguments to come in the months ahead, this fact should not be forgotten.

One thing you can count on for sure: A barrage of television and radio commercials, and large newsprint ads, are headed your way in the fall months. Barack Obama and John McCain aren’t the only ones we’ll be hearing from in late September and October.

My position, again, as a Boston Massachusetts drug offense attorney, is this: Let reason and rationale be your guide on this forthcoming issue, not emotion or fear. In any argument, it is the facts that are almost always the most important criteria, not hyperbole.