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Lawmen decry new Mass. law that decriminalizes small amounts of marijuana
12/31/08|The Republican| by Dan Ring - The Republican Newsroom

Law enforcement officials say there are many loopholes, unintended consequences and other problems in the new law that decriminalizes the possession of small amounts of marijuana.

The law replaces criminal penalties for possessing an ounce or less of marijuana with a civil fine of $100, about the same as getting a traffic ticket. Sixty-five percent of Massachusetts' voters approved the ballot law on Nov. 4, and it takes effect on Jan. 2.

Law enforcement officials still have many doubts about the law. Among the concerns are that some people will not be required to identify themselves if stopped for marijuana, that police officers cannot be disciplined for possessing an ounce of less of marijuana, and that state laboratories which test narcotics for criminal cases will no longer test small amounts of marijuana seized in a civil matter.

In addition, guidelines issued by the state for the law's enforcement say possession of an ounce or less of THC - the primary psychoactive ingredient in marijuana, hashish or hash oil - may now be decriminalized as well.

"The law is very confusing," said Holyoke Police Chief Anthony R. Scott this week. "The law presents a lot of problems for law enforcement."

Street dealers now will probably carry less than an ounce to elude arrest, he predicted. Under the new law, he said, police will no longer be able to arrest people for possessing an ounce or less and use them for information to go after dealers.

Berkshire District Attorney David F. Capeless, who is president of the Massachusetts District Attorneys Association, said the sponsors of the law hoodwinked the public.

"It's a disaster, and it was unfortunately a hoax perpetrated on the public," he said.

One loophole in the new law is that police have no authority to ask an offender for identification, said Capeless. There is a specific law which says residents must carry identification if they are driving, but there is no similar provision in the marijuana law, he said.

Jack A. Cole, the executive director of a group called Law Enforcement Against Prohibition and a former 26-year member of the New Jersey State Police, said the new law should not be difficult to enforce. Police know how to issue citations, he said.

"There shouldn't be any trouble at all with implementation," Cole said. "It's a very simple thing to do."

Terrel W. Harris of the state Executive Office of Public Safety and Security said his agency is moving forward to put the law into effect. Guidelines for law enforcement and others were to be in the hands of all police agencies this week.

All law enforcement officers with civil enforcement powers - including campus officers - have the authority to issue the new $100 tickets, under the guidelines.

According to the ballot law, people under 18 must complete a drug-awareness program, including 10 hours of community service, within one year of being cited for possessing an ounce of less of marijuana.

If the offender fails to complete the program, the fine could jump to $1,000 and parents could be liable.

The Committee for a Sensible Marijuana Policy spent about $1.5 million to win approval of Question 2. George Soros, a liberal hedge-fund manager, donated $400,000 toward the effort.

Supporters argued that approval of the law would mean that people who possess small amounts of marijuana would no longer be weighed down with criminal records.

Gov. Deval L. Patrick, the district attorneys' group, chiefs of police, and county sheriffs all opposed the question. Opponents said it would increase teenage drug use, be difficult to enforce, and boost use of a drug that creates many health problems.

Judge Lynda M. Connolly, chief justice of the state's District Court Department, issued an eight-page memorandum to court officials on Dec. 23, spelling out the effects of the law. The memorandum said that municipalities may need to adopt ordinances and bylaws to ban the public use of marijuana. Such bylaws had been unnecessary previously because possession of any amount of marijuana was illegal.

Under the law, violators aged 18 and above must pay the $100 civil penalty to a city or town clerk. Or, offenders can appeal the citation to a clerk magistrate for a civil hearing, Connolly wrote.

Offenders must also forfeit any marijuana, she wrote.

The state Executive Office of Public Safety and Security has determined that a civil violation for possession of an ounce or less of marijuana after Jan. 2 cannot be used to disqualify an applicant for a license to carry a firearm, Connolly wrote.

Whitney A. Taylor, campaign manager for the Committee for Sensible Marijuana Policy, said many of the concerns of prosecutors and police are red herrings. Possession of small amounts of marijuana have been decriminalized in 11 other states, she noted.

"We have a system I'm very confident can handle this," she said of the new law.

John M. Collins, general counsel for the Massachusetts Chiefs of Police Association in Grafton, said people voted with their hearts and were unaware of some "bizarre consequences" of the law.

One such unintended consequence, he said, is that the state cannot discipline public employees, including police officers, for use or possession of an ounce or less of marijuana. The law specifically says that public entities cannot impose any form of penalty for such possession, Collins said.

The new law could also cost the state a lot of money, he said. The law created a diversion program for people under 18, but did not fund it, Collins added.

Two state laboratories that test illegal drugs are unlikely to continue testing for small amounts of marijuana once it is decriminalized, he said.

"They are not going to test it any more," Collins said.

Officials have said the laboratories are already backed up.

Also, a couple of important public health rules go into effect with the new year.

Under a state Department of Public Health rule, emergency rooms in hospitals may no longer reroute ambulances to other hospitals.

Some emergency rooms divert ambulances to other hospitals if they are overcrowded. As of Jan. 1, hospitals must stop these temporary closures of emergency rooms in almost all cases.

Also starting next month, tax penalties will increase for people who can afford health insurance but refuse to obtain it. A 2006 health-care law established the penalties and the requirement for purchasing health insurance.

In 2008, the fine for an individual making more than three times the federal poverty level - $31,212 a year for singles - was $76 a month or $912 a year.

Draft regulations released on Dec. 22, however, showed that beginning on Jan. 1, fines will climb to $89 a month or $1,068 for an entire year if an individual remains uninsured.

Material from the Associated Press was used in this report.