MASSACHUSETTS SUPREME COURT CLEARS THE AIR: PUBLIC POT SMOKING IS NO CRIME

Despite the fact that public possession or use of less than an ounce of marijuana in Massachusetts was decriminalized by voters in 2008, police departments and District Attorneys’ offices around the state have still seemed intent on prosecuting people any way they can for the private, recreational use of small amounts of pot. This has not only been a direct affront to the public’s clearly stated will on this subject, it has involved a colossal waste of public resources.

Why do they continue to do this? Credible scientific study after study has made it clear that recreational marijuana use is not only not harmful in any malignant or serious sense of the word, but that chemically speaking, cannabis is not an addictive drug. Can people grow to enjoy it, or like it? Yes. Can some people become emotionally dependent on it? Depending on their personality, yes. But before any doubters latch on to those two answers with “Aha! You see – We told you so!”, remember this: People can grow to enjoy or like a lot of behaviors and substances in life. That doesn’t make those things addictive. As well, people can grow emotionally dependent on a lot of behaviors and substances – including music and comfort food. That doesn’t make those things addictive. Care to know three of the most chemically addictive drugs known to mankind – of the tens of thousands out there? Nicotine, caffeine, and alcohol. Yet all three are legal across this country . Regulated (as they should be,) but legal.

Yet, we spend hundreds of millions of taxpayer dollars prosecuting the use of cannabis. And, when the addiction argument on pot is proven wrong, opponents advance the “gateway drug” argument. This approach claims that, while cannabis itself may not be addictive, it leads to the use of other drugs (such as cocaine and heroin,) which are without question addictive. This is like saying that if you begin eating hot dogs, you will one day wind up abusing food to the extent that you’re 400 pounds and morbidly obese. People who abuse cocaine, narcotics and drugs like crack and heroin, do so because of deeply seated personality, biochemical and neurochemical problems – not because they smoked pot at one point.

As a Boston, Massachusetts drug crimes lawyer, I find the police and prosecutorial attitude toward personal pot use to be a massive waste of taxpayer resources – resources which need to be directed onto far, far more serious and malignant crime problems. It’s not that I don’t respect police officers or prosecutors – to the contrary, I very much respect both professions, and appreciate them. (After all, they help keep us all safe from real criminals – and that is not lost on me, despite the fact that as a Dedham Massachusetts criminal defense lawyer, I work on the opposite side of the aisle.) I know many fine police officers and prosecutors. But this attitudinal approach to the private use of marijuana, and the resulting waste of millions of dollars of precious tax resources, has got to stop.

The Massachusetts Supreme Judicial Court (SJC) took one more step in that direction this past Friday, in issuing three key decisions surrounding the possession and use of small amounts of marijuana. In each of the three cases, the court made clear where the criminal and civil offense line is with possession and use of marijuana. In these three rulings, the SJC threw out cases that charged the defendants with the far more serious crime of Class D Possession with Intent to Distribute (a felony,) when those charges arose simply because the defendants possessed less than an ounce of pot in public. The worst consequence that such an act can legally bring in Massachusetts, is a civil fine of $300 – essentially a ticket. Let me explain what’s been going on with the police approach to these cases: The police see someone either smoking or carrying less than an ounce of marijuana. They know they can’t arrest the person, but they want to “get” him or her, anyway. So they engage in a warrantless search of the individual’s person or car, in the hopes that they can find more than one ounce. And if they do find more than one ounce? Voila, they can make an arrest, and “bag” the person on charges that usually allege “Intent To Distribute,” which is what drug dealers are usually charged with. Ridiculous, but that’s what too many police officers do.

These kinds of facts were at the heart of one of these key rulings by the SJC: Every year on Boston Common, marijuana legalization advocates, including members of the National Organization for Reform of Marijuana Laws (NORML,) hold Hempfest. At this gathering, many people publicly smoke marijuana – harming no one, (including themselves.) At the 2010 Hempfest, Boston police officers zeroed in on someone who was sharing a marijuana cigarette with some friends. Even though this is NOT a crime, this led police to think they had probable cause to search the person’s backpack on the spot (i.e., without a warrant,) where they found 10 small bags of pot weighing a total of 23.5 grams, far less than an ounce. Faster than you can say “We Gotcha,” the person was arrested, cuffed, and charged with Possession with Intent to Distribute – a felony offense in Massachusetts.

The eventual legal result? The SJC threw the charge out, because the person arrested was not engaging in a crime, because the search was not supported by probable cause, and because the evidence found did not support the charge of Intent to Distribute. Writing for a unanimous court, Justice Fernande R.V. Duffly wrote, “We now decide that the social sharing of marijuana is akin to simple possession, and does not constitute the facilitation of a drug transfer from seller to buyer that remains the hallmark of drug distribution.”

The message to Massachusetts police and prosecutors: WAKE UP. Neither the public, nor the courts, view the possession or use of marijuana amounts of less than an ounce to be a legal offense, or worth taxpayer money to pursue. Leave it alone. Learn from the lessons of the massive failure of Prohibition, and use your resources to protect the public from real, actual criminals. That’s where we need you.