Although I believe regulating and taxing marijuana, as we do tobacco and beer, is the only policy consistent with securing to the individual the blessings of liberty promised by the state and federal constitutions, they should enact legislation that: ends the power of the police to arrest persons over the age of 18 for possessing marijuana; requires police to hold those under 18 for their parents or guardians; makes possession a civil violation, subject to a fine; and, to encourage enforcement, splits the fine between the state treasury and the municipality in which the offense occurred.
Prohibition is an unwholesome and unreasonable policy that has not worked if the desired result is less use and restricted availability. When Massachusetts enacted its first law prohibiting marijuana possession without a prescription in 1911, a miniscule minority of Bay Staters used it except in medicine. Now you can’t get a prescription, but the Federal Government estimates close to 10 percent of us over the age of 18 regularly pursue this conception of our happiness at least once each month and that over half of us have tried marijuana, placing Massachusetts first in the nation for monthly and lifetime use.
The peoples’ experience with marijuana explains the substantial margins of victory by which voters in three senate and 23 representative districts instructed their legislator to support making marijuana possession a civil violation since 2000. The people understand decriminalization conserves police, prosecution, judicial and probation resources, and is a sensible substitute for dismissal after a period of probation usually recommended by the district attorneys and imposed by the courts.
For the police, decriminalization means the loss of power to arrest and hold for bail — a power currently exercised arbitrarily. Some officers do not commence prosecuting marijuana possessors unless they have committed another offense for which they have the power to arrest. These otherwise law-abiding persons receive a verbal warning and may see their marijuana seized and destroyed. Other officers are not as lenient; they free offenders on the street after issuing a Uniform Massachusetts Citation, the same piece of paper you get when caught speeding, to the offender, or tell the offender they will be summoned to court. The least lenient arrest and hold the person for the bail magistrate.
For the district attorneys it will mean the loss of the power to prosecute persons whose only criminal offense is the possessing of marijuana and the leverage such charges provide for plea-bargaining when other crimes are alleged, due to the collateral punishments that accompany a marijuana possession conviction, such as loss of driver’s license for one year.
Of course, they will never admit that it is about power. Instead they will thunder that decriminalization will result in increased use among young people; a concern not supported by experience. Passage of similar legislation elsewhere has not led to increased marijuana use or altered perceptions regarding the potential “dangers” of marijuana use. The only U.S. government commissioned study to assess the impact of strict legal penalties on marijuana use concluded that, “decriminalization has had virtually no effect either on the marijuana use or on related attitudes and beliefs about marijuana use among American young people.”
A 2008 state-sponsored report on Seattle’s implementation of a 2003 voter- approved ordinance making investigation and prosecution of minor marijuana offenders the city’s “lowest law enforcement priority” found “no evident increase in marijuana use among youth and young adults; no evident increase in crime; and no adverse impact on public health.” The report also found that “there is some evidence of arguably positive effects [including,] fewer adults experiencing the consequences of involvement in the criminal justice system due to their personal use of marijuana.”
Opponents will thunder that marijuana use is hazardous to public safety and public health. The truth is marijuana has been intensively studied over the four decades since its use exploded in the 1960s and it has yet to be established that marijuana use causes cancer or other disease. Nor is its use a significant contributor to motor vehicle and workplace accidents. Of course, one should not go to work or drive under its influence, but the research indicates its effects no more impairing than over-the-counter cold medicines.
What President Carter said to Congress in 1977 remains true today: “Penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself; and where they are, they should be changed. Nowhere is this more clear than in the laws against possession of marijuana in private for personal use. We can, and should, continue to discourage the use of marijuana, but this can be done without defining the smoker as a criminal.”
Whether you agree or disagree, now is the time for let your representatives on Beacon Hill know your opinion.
Georgetown’s Steven Epstein, an attorney, is a founder of the Massachusetts Cannabis Reform Coalition and has long been active in the effort to loosen the laws regarding marijuana use. He is the parent of a young adult and two teenagers.