Pot Luck

What is it about cannabis that makes the legal system spin on its head? When the federal government decided to declare war on drugs, all of cannabis became a huge target. Indeed, despite the history of this country - and specifically this great Commonwealth - growing, cultivating, and manufacturing hemp into useful products, the entire plant family went out of favor. In the clan, hemp is like the nerdy, do-gooder, always helpful, productive cousin who quietly builds a solid life while the colorful, fun, popular cousins get all the attention and make all the dough. This blog has noted that with radical changes to all cannabis laws in states like Colorado and Washington, under the 10th Amendment, those states could revive and restore this plant to its utilitarian good regardless of the ill conceived war on drugs. Whether Massachusetts can join is, while not quite up in smoke, certainly cloudy given the recent decision in Commonwealth v. Palmer, SJC-11225 as combined with Commonwealth v. Pacheco, SJC-11216, Commonwealth v. Daniel, SJC-11214, and Commonwealth v. Jackson, SJC-11319.

On the one hand, the Supreme Judicial Court has now confirmed that the smell of marijuana does not and cannot establish probable cause to believe anything more than that people might be smoking marijuana.  It cannot justify a search or establish any indication of more drugs or contraband in the vicinity (Pacheco, Daniel).  And, the best part for police officers nearing the end of their shift is that they can accept that toke because sharing a marijuana cigarette is not a crime (Jackson).  Since the decriminalization of small amounts of marijuana in 2008, the expanse and limitation of distribution has been an open question since Commonwealth v. Keefner affirmed that while possession of under one ounce of marijuana is only a civil infraction, distribution - even of small amounts of marijuana - remains a criminal offense. 

Given the definition of distribution, sharing a marijuana cigarette satisfied the legal parameters.  The idea that distribution remains a crime for less than an ounce of marijuana is still an incredulous result given the fact that the law decriminalizing the substance was accomplished by ballot initiative with overwhelming numbers in favor of getting rational about a fairly innocuous substance.  Marijuana is not even considered a drug in North Korea...and it is completely legal....possibly because thinking is illegal so best to cloud the mind.

But, on the other hand, the SJC also determined that while possessing and sharing small amounts of marijuana is no longer a crime, actually growing it is.  Borrowing an analogy from an old public service advertisement, if the ballot initiative was the egg, Commonwealth v. Palmer is the egg in the frying pan.  It is a nonsensical, convoluted approach to dealing with an issue that -truthfully - is not an enormous problem. The approach - continuing to make cultivation of a plant a crime may very well hamper restoration of a sustainable, useful crop with multiple applications that could offer jobs in the farming, manufacturing, and textile industries while preserving open space and vistas that improve tourism and environmental health throughout the pastoral portions of the state.

However, in fairness to the SJC on the cultivation-as-crime result, the fault lies not in their statutory interpretation, but rather in the sloppy legislative action after an overwhelming number of Massachusetts voters sought to decriminalize marijuana.  That is, in Keefner, the Court extended an invitation to the legislature to fix the language, but the legislature declined because, apparently, they were too busy determining which offenses would lead to a "3 strikes and you're out" eternity in prison just as most other states are undoing their draconian sentencing strategies.   In any event, the legislators did not change the law despite the fact that the statutory language fails to represent the will of the people.

So, while one may possess less than an ounce of dried marijuana, ready to light up; it is unlawful to cultivate the same.  While it is okay to share one lighted marijuana cigarette among friends, it remains to be seen if handing a friend an unlit identical item is similar or somehow radically different.  The decisional law continues to beg for legislative action, but despite the majority of citizens in favor of decriminalization and a significant portion is certainly eying Washington and Colorado to determine how they regulate in the face of legalization, the Massachusetts Legislature has been silent.

In a democracy, the idea is that the state legislatures will be most tightly linked to the values of their constituents.  The Governor is a more distant executor of the laws and the courts remain most distant of all in Massachusetts due to their appointment and tenure until age 70 (although some jurists continue in recall years after official retirement). Strange that the legislature is least responsive to the will of the people.  This is particularly true in regard to criminal legislation.  Candidates run on "tough on crime" platforms and get elected - because, really who wants a leader to be "complaisant on crime"?  And then they enact laws that are (a) opposed to the will of the people who clearly meant to be tough on crimes that hurt people, and (b) often haphazard and impractical in their approach.  While Massachusetts Courts have fairly consistently been bastions of freedom and beacons for civil rights, they are stymied by poorly drafted legislation.

This dissonance screams for jury instructions that allow the 12 members of the community selected to decide the facts to consider all of the facts: in 2008, 65% of Massachusetts voters sought to decriminalize marijuana and roughly the same percentage - after an enormous and unfounded blitz by medical professionals, who seem to seek something other than their patients' well-being, attempted to derail the effort - voted to legalize the medical use of marijuana in 2012.  But the legislature, apparently unaware that they need to both lead and follow and so continue to do neither, just says "no."

Therefore, in a jury trial, upon the request of the defendant, who faces a loss of liberty if convicted, the people must be granted the right to speak to the validity of laws as well as the facts of the case.  The cases mentioned in this post had not gone to trial; three were interlocutory appeals from motions to suppress seizures from unlawful searches and one was a Commonwealth appeal from a motion to dismiss.  The cultivation case has the potential to get to a jury and if it does, the jury should be fully informed of the law and the facts: the fact that an overwhelming majority of voters want marijuana to be treated as a civil offense, if at all; that the equivalent amount of marijuana being cultivated by the defendant, when carried on one's person or ingested into one's body, is not a criminal offense; that incarceration is a possibility if the defendant is convicted; that the cost of incarceration in this Commonwealth is roughly $43,000 per year; and that there are collateral consequences to drug convictions that range from ineligibility to serving in the military to obtaining a loan for school and certain employment opportunities.  Juries need to have facts and law at their disposal in order to render a fair judgment.  There is nothing biased or unfair or inaccurate about any of these legal facts.  Indeed, a government of the people, by the people and for the people should celebrate its laws and ensure that they reflect the public will.  If the legislature refuses to do its job, the people must step in.

Colonists drank and smoked significantly more than Americans do today.  Clean water was difficult to obtain thus beer and wine proved a safer libation.  Tobacco and marijuana both were grown as cash crops wherever they thrived.  Until the Christian Revival movements of the mid-late Nineteenth Century, it was not really the ingestion of intoxicating substances, it was the abuse to the point of being incapable of contributing to society that portions of society frowned upon.  It's fair to say that most Americans still feel the same way as did our foremothers and fathers: drinking and smoking is fine in moderation.  While tobacco was probably stronger then, it was also more pure and not laden with addictive properties such as the nearly 600 ingredients added to make cigarettes more addictive.  Thus, smoking cigarettes today becomes a habit difficult to break with significant damage to the body (and offense to passers by therefore justifying anti-smoking legislation); combining that with "advances" in medical technology, the American fear of death, and mandatory medical insurance coverage - the problem quickly changes from a personal choice to an expensive public concern.  The same, however, is not true for marijuana.

If an individual grows marijuana in his home for personal consumption, or sharing with friends, several of the frightening aspects of the War on Drugs are eliminated: trafficking is eliminated thus FEWER drugs coming into the state; with less trafficking, there is less opportunity for organized crime and attendant criminal activity associated with organized crime such as prostitution and the presence of unregistered firearms;  indeed, if cultivating small amounts for personal use is permissible, that reduces the overall number of guns on the street "protecting" corners for trade; and the product is known to be pure, unlaced with deadly chemicals that have entered the street market for drugs increasing the medical emergencies associated with casual users.  Without suggesting that home cultivation serves an overall public good (although statistically it probably does), it also should not be considered a crime.  Legislating to permit cultivation of small amounts of marijuana could then open the door to legislation for cultivating industrial hemp as well.

America has serious problems.  Marijuana consumption, in reasonable quantities, is not one of them.  The the recent decisions in Massachusetts directing the police that the smell of burnt marijuana cannot satisfy the probable cause hurdle to search a vehicle must be lauded; they are a step in the direction of reclaiming individual liberties, many of which were lost in the Prohibition Era and throughout the War on Drugs.  At the same time, the legislature's inaction on clarifying that small amounts of marijuana - whether being smoked, in a pocket, in one bag or several, or growing in a pot of dirt - is inexcusable, creating both arbitrary and capricious outcomes in criminal cases, an abomination to criminal justice.

Informative jury instructions on the reality of what the people want versus what they received in legislative action might lead to more rational results; at least asking for them should sweeten the pot.