Boston Criminal Attorney Blog

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.