All Decriminalization Laws are Not Equal

Reform of marijuana laws continues to expand, with new decriminalization laws passing in DC and Maryland just this year.

But just because having a small amount of marijuana has been reduced to a civil penalty where you live doesn’t mean the police won’t hassle you or look for (or invent) other reasons to arrest you.

Decriminalization laws don't mean you can't still get arrestedHere are a few examples of how decriminalization works in different places.

California

Decriminalization of under 1 oz  has been the law of the state of California since 1975. With widespread and relatively easy access to medical marijuana, some people believe that it is effectively legal here.

But that is simply not the case. In fact, in 2010, California had the 4th highest marijuana arrest rate in the country. While many of these may be for larger quantities or illegal sale, there is still a huge disconnect between the perception of lax enforcement to the reality of the continued drug war.

New York

New York was one of the first states to decriminalize marijuana, yet has remained one of the absolute worst states for marijuana arrests. How is this possible?

It is largely a function of how police work, and a poorly worded law. It states that you are allowed to have under 25 grams in your possession, as long as it is not in “open and public view”, i.e., in your pocket.

But New York City in particularly has been one of the most aggressive police departments with it’s “stop and frisk” laws. So guess what happens when you get stop and frisked, and you take out a bag of weed?

Now it’s out in the open, and they will arrest you. Brilliant.

Matt Taibbi has written about this, and it has been a truly outrageous abuse of police power. Mayor De Blasio has pledges to end abusive stop and frisk policies in New York City, so we will see if these trends will finally start to reverse.

Massachusetts

Massachusetts voters passed marijuana decriminalization in 2008, and the law has been largely uncontroversial. But cops are not always cooperative, and may look for excuses to charge you with other crimes or illegally search you. However the Courts in the Bay State have been particularly good in defending the civil rights of citizens.

For example, the Massachusetts Supreme Judicial Court has made it clear that a search of a vehicle based on the smell of marijuana alone is not sufficient legal justification.  The reasoning is – since marijuana possession is not a crime, there is no reason to suspect criminal activity.

But cops do still violate this rule, and attorneys can often get this evidence thrown out.

And Massachusetts cops may still try to overcharge you with distribution, even for under an ounce. If you happen to have your weed in a few separate baggies or have some cash in your possession, it could cause the police to accuse you of selling drugs, even when what you have is just for personal use.

Maryland

The new Maryland decriminalization law is set to go into effect on 10/1/14, but it is already having an impact. Some county DAs are quite reasonably agreeing to drop prosecutions for charges that will not be a crime a few months from now. But others continue to take a hard line and prosecute these minor offenses while they can.

The law itself is one of the more limited efforts. Decriminalization is only in effect for under 20 grams, less than an ounce, which is the typical decriminalization amount in other states. And any drug paraphernalia is still a crime. Even rolling papers could get you arrested if you have a small amount of weed, and result in a legal car search by the police.

What About Local and Municipal Marijuana Decriminalization?

A lot of cities and counties have passed municipal ordinances to decriminalize small amounts of marijuana. This has been a widespread effort in places from Portland, Maine to cities across Michigan

Unfortunately, cities don’t generally pass their own criminal statutes, and being in conflict with the state law can have a lot of problems. Even if the local police respect the local ordinances, State Police officers typically will not. So if you are pulled over by a state cop on a state road or highway in a town that has decriminalized, you will likely be arrested anyway.

 

As you can  see, while decriminalization of marijuana is certainly an improvement, it is still not legalization. It reduces your risk of criminal consequences for possession, it really depends on how aggressively the police look to arrest and hassle people, and that can vary considerably from state to state, and town to town.

About David Matson

David writes about criminal justice issues.
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