Pubdate: Mon, 06 Oct 2014
Source: Baltimore Sun (MD)
Copyright: 2014 The Baltimore Sun Company
Contact:  http://www.baltimoresun.com/
Details: http://www.mapinc.org/media/37
Page: 14

MD.'S POT PARADOX

Problems with state marijuana decriminalization are already apparent; 
legislators should fix the obvious ones but wait and see on others

Maryland's legislature decided to decriminalize possession of small 
amounts of marijuana for a few reasons.

Lawmakers concluded that police and prosecutors should not be 
focusing their attention on what is increasingly viewed by the public 
as a relatively harmless vice; they expressed concern that criminal 
convictions related to marijuana possession were harming the 
employment and educational prospects of thousands of Marylanders; and 
they were alarmed at the massive racial disparities in marijuana 
possession arrests between blacks and whites despite equivalent rates of use.

Although the new law only went into effect on Wednesday, it's already 
clear that it's going to take some more work to ensure that those 
policy goals are achieved uniformly throughout the state.

As is common with major legislation, this one contains some 
ambiguities and omissions that will need to be addressed by the 
legislature, the courts or both.

The first and most obvious thing the legislature needs to do is to 
address the incongruity that possession of less than 10 grams of 
marijuana is punishable by a civil citation and a fine (much like a 
traffic ticket), but possession of drug paraphernalia, including 
things like bongs, rolling papers and hookahs is a criminal offense. 
It doesn't make a lot of sense that 9 grams of marijuana in a Baggie 
is a civil offense but a trace amount in a pipe is a criminal one, 
subject to a $500 fine for a first offense and up to two years in 
jail for subsequent violations.

Historically, paraphernalia violations have rarely been prosecuted as 
stand-alone offenses because the devices used for smoking marijuana 
can, generally, be used for legitimate purposes as well. A hookah can 
be used for smoking marijuana or tobacco, and a prosecutor would have 
a hard time making a case unless the police also found drugs.

The trouble now is that a prosecutor and judge who disagree with the 
legislature's policy choice could use paraphernalia as a loophole to 
circumvent the new law. Theoretically, you could still get prosecuted 
for having a joint in your pocket, but now it would be the rolling 
paper, not the actual cannabis, that gets you in trouble.

That should be fixed.

Another peculiarity of Maryland's law is that, unlike in Colorado, 
which legalized recreational use of marijuana this year, it is not 
actually illegal to smoke pot in public here. A bar or restaurant 
owner faces an escalating series of fines under the 2007 Clean Indoor 
Air Act for allowing patrons to smoke tobacco but no penalty at all 
for letting them smoke marijuana.

You can now be fined $500 for smoking a tobacco pipe on a playground 
in Baltimore City, but it's not altogether clear that the law would 
apply to a marijuana bong. That should be fixed, too

But several of the other possible problems critics of the law have 
pointed out merit a wait-and-see approach.

The law contemplates an escalating series of fines for multiple 
citations, and ultimately a requirement that repeat offenders attend 
a drug education session. But since those caught with small amounts 
of marijuana aren't required to show ID, and police can't track 
offenses, there may be no meaningful way to enforce that. The trouble 
is, there may be no easy way to fix that without violating suspects' 
civil rights.

It's also unclear how the legal change affects officers' ability to 
conduct searches when they observe or smell marijuana on someone's 
person or in a car. But that is a question of unsettled law 
nationally, not just in Maryland.

At a time when attitudes and laws regarding marijuana are in flux 
across the country, Maryland has exercised some prudent caution in 
liberalizing its laws; we have taken steps to alleviate some of the 
worst problems - including racially disparate arrests - related to 
current marijuana policy while letting other states discover the 
problems associated with outright legalization. When legislators 
return to Annapolis in January, they should fix some of the law's 
obvious flaws but otherwise wait to see how it works in practice.
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MAP posted-by: Jay Bergstrom