Fighting Pot's Decriminalization


Gerry Leone
By David Abel  |  Globe Staff  |  Oct. 20, 2008

As a student at Stonehill College, Suffolk District Attorney Daniel F.  Conley found himself in a room with guys passing around a bong.  "When it came to me, I inhaled so hard that it burned my lungs," he says.  "I don't want to sound Clintonesque; I inhaled, but I couldn't handle it."

Gerry Leone, Middlesex district attorney, also admits to smoking pot.  "It was years ago, when I was a young man," he said.  "I tried it once, and it wasn't something I was ever into."

Michael O'Keefe, district attorney for the Cape and Islands, would only hint at his past: "Like a lot of people in my generation, we did a lot of things that were unwise, unhealthy, and illegal," he says.

The prosecutors - who would have faced obstacles to attaining their law enforcement positions had they been caught - are now among the leading opponents of a proposition on the Nov.  4 ballot that would decriminalize possession of small amounts of marijuana.  They argue that the initiative would send the wrong message and lead to a host of social problems.

Proponents argue, however, that if the question passed, possession of small amounts would remain illegal but would no longer tarnish someone's future.

Daniel F.  Conley
Under state law, those convicted of possessing even a small amount of marijuana now face up to six months in jail, a fine of $500, and a lifelong criminal record that may be available to potential employers, housing agencies, and student loan providers.  In 2006, 6,902 people were arrested in Massachusetts for marijuana possession - - more than 38 percent of all the drug arrests in the state that year, according to the FBI's Uniform Crime Reports.

All arrests for marijuana possession are archived by the state's Criminal History Systems Board - even when there isn't a conviction.  The board is obliged to disclose such Criminal Offender Record Information, known as CORI, to any employer seeking to hire a teacher, police officer, day-care center employee, school bus driver, or nursing home worker, as well as prosecutors.

The proposed change in the law - Question 2 on the ballot - would make possession of less than an ounce of marijuana punishable by a civil fine of $100, the equivalent of getting a speeding ticket.  Nothing would be reported to the criminal history board.

Those younger than age 18 would be required to complete a drug awareness program with a community service component.  The fine would increase to as much as $1,000 for those who fail to complete the program.

Proponents of the initiative say it would maintain the law's existing penalties for growing, trafficking, or driving under the influence of marijuana, while ensuring that those caught with less than an ounce of pot would avoid the taint of a criminal record.  ( Nearly 100 million Americans report having tried marijuana at least once, according to a 2005 study by the US Department of Health and Human Services.  ) They also argue it would save the state millions of law enforcement dollars and match similar marijuana possession laws in Maine, New York, California, North Carolina, Oregon, Ohio, Arizona, Colorado, Minnesota, Mississippi, Nebraska, and Nevada, all of which have adopted some form of decriminalization.

"Marijuana will remain illegal, but the new law wouldn't prevent someone who makes a mistake when they're young from becoming a teacher, a foster parent, or a prosecutor," said Whitney Taylor, chairwoman of the Committee for Sensible Marijuana Policy, which collected about 125,000 signatures and raised more than $922,000, nearly half from billionaire financier George Soros.  "I think it's hypocritical for the district attorneys to insist on keeping lifelong barriers for folks who weren't as lucky as they were by avoiding arrest."

The prosecutors - who insist they have learned from their mistakes - and other law enforcement and education officials opposing the initiative say they worry that decriminalizing marijuana possession would promote drug use and benefit drug dealers.  They said that if the question passes, dealers could evade arrest when carrying as many as 60 joints - which they say equals about an ounce.  They warn it would increase violence on the streets and safety hazards in the workplace, and cause the number of car crashes to rise as more youths drive under the influence.

"There are a lot of reasons why I think this is a bad idea," said state Attorney General Martha Coakley.  "The bottom line is that this sends a message that it's OK to use marijuana .  .  .  but to pretend it's not a public safety issue is disingenuous."

Coakley said she has never used marijuana.

She and others said most of those charged with marijuana possession are arrested for other reasons, such as driving under the influence or possessing a more potent drug like crack cocaine.  They also said most people arrested for marijuana possession have their records cleared within six months.

"It's very rare we arrest someone for marijuana possession alone," said Chelsea Police Chief Brian Kyes, another vocal opponent of the initiative, who also said he has never smoked pot.  "Right now, the law is very lenient for marijuana possession.  There aren't people going to jail solely for possession of marijuana - and the current statute requires that after six months the conviction is continued without a finding and that the records be sealed."

But Georgia Critsley, general counsel for the state's Criminal History Systems Board, said that marijuana possession arrests and convictions are records that remain visible to many employers.

She said schools, law enforcement agencies, nursing homes, camps, and most companies employing someone who works with children or the elderly can see arrest records, even if the charges were dismissed.  She said certified professional groups overseeing lawyers, doctors, nurses, plumbers, electricians, and others can review records for pending cases - before adjudication - as well as any convictions.  Noncertified employers can see only convictions punishable with a jail sentence of five years or more.

"It's complicated because different employers see different things," Critsley said.

In a study of the potential effects of marijuana decriminalization on Massachusetts, Jeffrey Miron, a senior lecturer in the economics department at Harvard University, disputed the contention that few arrests are for marijuana possession alone.  Based on a review of court records in Brockton and Barnstable and interviews with judges and lawyers, he estimated that about one-third of marijuana-possession arrests in the state involve only that charge.  He also said studies of decriminalizing marijuana possession in the United States, Australia, and the Netherlands have shown that it does not increase usage.

He estimated decriminalizing marijuana would save the state's police departments, courts, and jails nearly $30 million.

"I think the policy does more bad than good," said Miron, who was paid $2,000 for his study by New England Policy Advocates in support of the initiative.  "I think all drugs should be legal.  Prohibiting drugs like marijuana drives the market underground - and that increases crime and makes it hard to regulate quality."

Jack A.  Cole, executive director of the Medford-based group Law Enforcement Against Prohibition, argued the initiative would do more to dissuade youths from abusing marijuana than the current law because of the required drug awareness program.  "I've spent my whole life fighting drug abuse, and believe me, not one of us wants to see one more drug abuser in the world," he said.  

David Abel can be reached at dabel@globe.com. Follow him on Twitter @davabel.