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Puff, Puff, Don't Pass in Mass: Police Say Sharing a Joint is Distribution to Circumvent Decrim

By The American Civil Liberties Union November 19, 2012 Puff, Puff, Don't Pass in Mass: Police Say Sharing a Joint is Distribution to Circumvent Decrim
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Police continue to investigate low-level marijuana use despite decriminalization, saying sharing a joint is "distribution"

BOSTON, MA — Despite approval by Massachusetts voters of a 2008 ballot measure that decriminalized possession of up to one ounce of marijuana, unwarranted investigations of noncriminal marijuana possession continue. Prosecutors are now focusing on the sharing of marijuana among users, which prosecutors regard as criminal “distribution” even when no money changes hands.

In 2008, more than 65 percent of Massachusetts voters approved a measure meant to reduce punishments for marijuana offenders. Possession of up to one ounce of marijuana is an infraction of the law punishable by a $100 fine, but is no longer a criminal offense.

Nonetheless, the Commonwealth has argued in cases since then that sharing noncriminal amounts of marijuana constitutes criminal “distribution”–a crime punishable by up to two years in prison.

Cape and Islands District Attorney Michael O’Keefe, vice president of the Massachusetts District Attorneys Association, defended prosecutors’ actions, saying that they are prosecuting these cases as distribution because “the law is the law.”

Sharing a joint is distribution, says O’Keefe, even if no money changes hands.

Under the Commonwealth’s theory, anyone who passes a joint to a friend is a drug distributor, and someone who engaged in this “distribution” near a school–such as a high school student smoking with his friends–can face enhanced punishment for drug crimes committed in school zones, including a mandatory minimum 2 year prison sentence.  Distribution to a minor can result in a 5 year mandatory minimum sentence.

The American Civil Liberties Union of Massachusetts and the national American Civil Liberties Union, together with cooperating attorney Alex Philipson, last week submitted a friend-of-the-court brief in a case, Commonwealth v. Pacheco, which challenges this interpretation.

“The Commonwealth is simply wrong to argue that sharing marijuana constitutes criminal distribution,” said Matthew R. Segal, legal director for the ACLU of Massachusetts.

“More fundamentally, the Commonwealth’s argument contradicts the will of the voters who approved marijuana decriminalization in 2008. The voters sought to limit marijuana prosecutions, not to invite creative ways for the Commonwealth to increase them.”

Bay State voters have twice voted heavily in favor in marijuana law reform, first with decriminalziation passing in 2008 with over 65% approval, and again in the recent 2012 when voters approved a measure by 63% that will make Massachusetts the 18th medical marijuana state.

Activists predict this momentum will carry into a successful legalization campaign in 2016 with similar support, and they have the evidence to support their claims. In the November elections, voters in 45 cities were asked non-binding questions on marijuana legalization, earning a 73% approval.

It is this very momentum that has some prosecutors on the offensive for small-time marijuana bust.

“It’s the slow erosion of our drug laws,” District Attorney O’Keefe told the Boston Globe. “If that’s the way society wants to go, then let’s have an honest debate about it. But I think it’s a mistake.”

Activists say that in addition to contradicting the will of the voters, these cases are placing an unnecessary burden on a justice system already suffering in the public eye.

“Massachusetts is already struggling to deal with the complications of the state drug lab scandal, which might require re-trying thousands of drug cases, on top of the ordinary case load,” said Carol Rose, executive director of the ACLU of Massachusetts.

“The Commonwealth should be doing everything it can to reduce the burden on our criminal justice system–not forcing more and more people into it for nonviolent drug offenses that Massachusetts voters have clearly said should be deprioritized in favor of fighting serious crime.”

 

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