Pompo

Answers few on 'Question 2'
1/3/09|Berkshire Eagle| by Conor Berry, Berkshire Eagle Staff

A new state law decriminalizing possession of an ounce or less of marijuana took effect Friday, and the sky did not fall. But the state did recently issue guidelines to help answer last-minute questions from law enforcement officials, while the Berkshire District Attorney's office held training sessions earlier this week for local police departments.
Some county law enforcement officials polled by The Eagle on Friday said they had yet to issue any tickets for the new civil offense, which was approved overwhelmingly by voters on Nov. 4.

Nonetheless, public safety officials claim the law sends the wrong message about illicit drugs and has bureaucratic loopholes and consequences, including financial and enforcement issues. It also shifts a legal burden onto municipalities, whose leaders must decide whether to enact local ordinances prohibiting public use of marijuana to address the new ounce-or-less civil threshold.

For example, while a police officer still has authority to seize a joint from someone smoking pot in public, he can no longer arrest that person if the quantity falls within the new civil penalty range. Instead, the offender would get a $100 ticket, which is about the price of a speeding ticket or a building code violation.

Some police departments, including Pittsfield's, are still waiting for special new citation booklets to arrive, which may have played a role in the lack of tickets issued on the first day of enforcement. Many wrinkles still need to be ironed out, according to local public safety officials, who claim the measure could cost municipalities more in additional paperwork, court expenses and other costs. Law enforcement officials generally believe the law sends a message — especially to children and teenagers — that marijuana is not a serious drug.
Berkshire District Attorney David F. Capeless, president of the Massachusetts District Attorneys Association, remains a vocal critic of "Question 2," which is how the marijuana measure appeared on statewide ballots on Election Day. In the lead-up to Nov. 4, the statewide association of prosecutors and other law enforcement groups strongly opposed Question 2, holding press conferences, debates and forums to sway public opinion.

But the marijuana measure was supported by well-financed lobbying groups and billionaire hedge-fund manager George Soros, and it won approval by a wide margin. The fact that 65 percent of Bay State voters supported the measure makes it more challenging for parents, police and prosecutors to promulgate anti-drug messages to young people, some of whom may question the wisdom of their elders, according to Capeless.

"The adults in their lives went and voted and said, '(Marijuana) is no big deal,'" Capeless said.

"Contrary to the assertions of the proponents of Question 2, who said that this was going to save money, this is going to cost money because my office will no longer be prosecuting these cases," he said.

'Still contraband'

Instead, the additional costs will be passed along to municipal police departments, which must pay for the citation booklets and establish their own policies and practices in conjunction with local courts. While Massachusetts State Police troopers will be issued new citation books, municipal departments must print or procure their own books.

"People should understand that (marijuana is) still contraband, and the police are not only authorized to seize it, but obligated to do so," Capeless said.

The district attorney's office sponsored a training session on Tuesday for all county police departments, said Capeless, and local chiefs and officers still "had a number of questions" about the law.

Pittsfield Police Capt. Michael J. Wynn, the department's ranking officer, said his troops were still waiting for the citation books to arrive.

"We're still playing catch-up," said Wynn, adding that Pittsfield only received the state guidelines within the past two weeks.

"During the holidays, we didn't get a chance to digest a lot of it," he said, "but we did issue guidelines to our people."

Minors' parents liable

The new law imposes a $100 civil fine on offenders caught with an ounce of pot or less, but that fine does not increase for repeat offenders. However, offenders who are under age 18 must pay the fine and also attend a drug awareness program, which requires them to perform 10 hours of community service. Minors who fail to complete the program within a year of the offense could face up to a $1,000 fine. Their parents will become liable for the fine if it goes unpaid, according to the law.

Advocates of the relaxed law claim it erases the criminal stain of being caught with small amounts of pot — a common slang term for the drug known for its psychoactive and physiological effects. Critics claim it sends a mixed message about drugs, especially to youth, and also may help create smarter drug dealers, who likely will figure out ways to avoid criminal prosecution by carrying smaller quantities of marijuana.

Guidelines issued

The law caused enough concern and confusion in criminal justice circles to prompt District Court Chief Justice Lynda M. Connolly to issue an eight-page advisory to all Massachusetts Trial Court employees, including judges, clerk-magistrates and probation chiefs. The Massachusetts Office of Public Safety and Security and the state's commissioner of elementary and secondary education also issued similar guidelines to help establish clear enforcement standards before the law took effect.

State officials have urged local municipalities to enact bylaws or ordinances prohibiting public use of marijuana to prevent those who might try to challenge the parameters of the law by lighting up in public.

Police officers must still use probable cause when searching for illegal marijuana, according to state public safety officials. The new law decriminalized the sanctions for possession of an ounce or less of marijuana or THC, the main psychotropic ingredient in the plant; it did not legalize marijuana in Massachusetts, according to the guidelines.

Gauging whether a person has under or over an ounce of pot will be left up to police officers: "Individual officers will have to make an initial assessment based on training and experience. Probable cause is the standard."

"In many instances, the approximate weight will be clear. If police have probable cause to believe the suspect possesses more than an ounce, the suspect may be arrested," according to the public safety guidelines. "However, where police do not have probable cause to suspect possession of more than an ounce, and portable scales are not available, they have the option of taking the suspect's information and releasing him while also instructing him that he will receive information in the mail.

"When police return to the station, they may weigh the marijuana. If the weight is more than an ounce, the suspect may be summonsed to court on a criminal complaint. If the weight is an ounce or less, a citation may be mailed to the suspect within 15 days of the offense."

Detective Sgt. Marc E. Strout, head of Pittsfield's narcotics unit, said that although there are still "a lot of kinks" in the law, it will not effect the day-to-day mission of his team.

"They can pass whatever laws they want," he said. "We're still going to be out there pounding the drug dealers."