The dramatic comeback for marijuana decriminalization in Maryland is now complete, as the Governor signed the General Assembly’s bill into law earlier this week. Come October it will no longer be a crime for a person over the age of 18 to possess less than ten grams of pot. Despite the overwhelming support of state lawmakers (the bill easily passed in the house and senate) and the public, decriminalization is not without its detractors. State prosecutors are one group that has expressed criticism over the new law, and their reasons are not so obvious. You would expect state prosecutors to have a more conservative, less tolerant approach to certain behaviors, which our laws have historically deemed as crimes. On the other hand, the prosecutor’s criticism of decriminalization is not simply general moral opposition, but rather concern over the implementation of this new law. A close examination of the bill certainly supports some of these concerns.
One of the many shortcomings of the marijuana decriminalization bill is that it completely fails to address the issue of drug paraphernalia. Possession of drug paraphernalia is and always has been a criminal offense. A first offense is punishable by fine only, but a second or subsequent offense carries a 2-year maximum jail sentence. The Maryland drug paraphernalia law was designed to criminalize almost any type of object that is used to prepare, weigh, store, transport, or ingest an illegal drug. This includes anything from the glass pipe or rolling papers used to smoke the marijuana down to the plastic baggie that is used to store it. So it is not a crime to have 3 or 4 grams of pot in your pocket, but it may be a crime to have that eighth of an ounce in a sandwich bag in your pocket. The same is true for possession of a joint; the half of a gram inside the rolling paper will not be a crime, but the paper itself can be.
It is obvious that our lawmakers did not intend for police to arrest and charge people for paraphernalia when the only drug involved is a small amount of pot, but they never said so. As the law stands cops will be free to make these paraphernalia arrests, thus potentially rendering the decriminalization law useless. Seriously, how often do people carry marijuana without some sort of baggie or container? And you are kidding yourself if you don’t think police officers use Ziploc baggies as the sole reason for a paraphernalia charge. We’ve seen it happen numerous times with our own clients.
Fortunately cops do not possess all the power to dictate how our laws are enforced. The lawyers in the state’s attorney’s offices ultimately have the power whether pursue these cases or drop them. They can direct the police departments in their respective jurisdictions on how to enforce particular laws. Now, out on the street cops can always act on their own, but when all of their arrests and criminal citations end up getting thrown out in court the message will become clearer, and they will adjust. It will be interesting to see what message the prosecutors choose to send to law enforcement about decriminalization and drug paraphernalia, and if the message is uniform across the state. As we have said a million times before, the fight and the confusion will not really end until marijuana and marijuana paraphernalia are legalized.
Benjamin Herbst is a criminal defense lawyer who handles all offenses, including drug possession. Contact Benjamin for a free consultation about your case at 410-207-2598.
Prosecutors Confronting Marijuana Law’s Challenges in Md., washington.cbslocal.com.