POLICE SEEK WAY TO DIFFERENTIATE POT VIOLATIONS

While Dane County's district attorney has come under fire for large numbers
of minor marijuana prosecutions, the Madison Police Department has been
developing a new policy aimed at reducing criminal pot possession cases.

Since 1992, the department has operated with no formal policy on what to do
with people caught with small amounts of marijuana.

Now, after seven years of giving officers wide latitude in determining
whether to issue a municipal citation or refer someone for criminal
charges, police officials are again drafting formal guidelines.

"We determined, at this point, that we need to offer more guidance, and
that guidance will come in the form of a policy," Assistant Police Chief
Ted Balistreri said in an interview with The Capital Times.

Balistreri is heading an internal Police Department committee that will
draft the new guidelines by the end of the month.

The internal policy review comes in the midst of an evaluation by Dane
County District Attorney Diane Nicks, who said in an interview that she is
concerned about how many small marijuana possession cases go through her
office -- an office that she considers already pushed to its limits.

One solution, she said, is to cut the number of cases that make their way
to her office by having officers issue municipal citations rather than
criminal charges.

The Police Department policy in place before 1992 instructed officers
generally to issue an ordinance citation to people who were caught with 14
grams, or about a half ounce, of marijuana or less. Officers had discretion
and would make exceptions to the rule if the pot was discovered in
connection with another crime or if the person had a prior drug conviction.

While Balistreri stressed that an amount has not yet been determined for
the new policy, it may be close to the charging guidelines established by
the Dane County District Attorney's Office of 7 grams, or about a quarter
ounce.

Being issued an ordinance citation for small pot possession had been common
in Madison since the 1960s. During the Vietnam War era, for example, the
citation carried a $5 fine, a symbolic punishment that represented the
city's liberal views toward smoking pot.

But over the years, and especially in the early and middle 1990s, marijuana
prosecutions have increased and the punishments have been much more severe.

Today, people with even trace amounts of marijuana have been criminally
charged with misdemeanor marijuana possession, and many of those convicted
pay hundreds of dollars in fines, lose their driver's license for six
months and face the prospect of having a criminal conviction.

An ordinance violation, on the other hand, is a simple ticket that carries
a fine of $100.

According to an analysis of court records, 723 people were initially
charged with misdemeanor possession of tetrahydrocannabinols, or THC, the
official charge, from Jan. 1, 1998, to July 31, 1999. How many of those
actually resulted in criminal convictions is difficult to determine.

The Capital Times reviewed a sample of 46 cases -- every 15th case filed in
the 19-month period. Of the 46 cases, 50 percent of them, or 23, resulted
in criminal convictions for possession of THC. Nine of the cases were
pleaded to municipal or county ordinance violations.

Court documents do not routinely mention the amount of pot discovered by
officers, but in some cases the amount was less than 2 grams -- essentially
a trace.

It is Nicks' goal to criminally prosecute small marijuana possession in
only cases that involve other crimes or people with past convictions, with
some flexibility to account for unique circumstances, she said.

"If people have the notion that these are people using in their private
homes and are somehow detected by police, that's not it. Those cases just
don't come in," Nicks said.

She said she is happy the Police Department is reviewing its practices and
said it is important that the county's three largest criminal justice
entities -- the Madison Police Department, the Dane County Sheriff's Office
and the District Attorney's Office -- are on the same page. Consistent
enforcement: Why the push for a new policy for Madison police officers?
Balistreri said it comes after concerns were raised in the community, and
within the City-County Building, about the proper punishment for people
nabbed with small amounts of marijuana.

"Part of it was a recognition from reviewing reports and having discussion
among many of us that we might need a policy," Balistreri said.

He added that the department has hired many new, young officers.

"We now have a whole bunch of really inexperienced officers in the
department," Balistreri said. "They don't have the dynamics or an
understanding of the public sentiment on it."

One officer might be particularly tough on people with pot, routinely
arresting people for criminal possession, while another officer in a
different part of the city might routinely issue a ticket for the same offense.

And after the city's Police Department develops its guidelines, it will be
important for the Sheriff's Office and the District Attorney's Office to
make sure all three entities are operating similarly.

Right now, the county's THC ordinance allows for a citation for possessing
25 grams or less, a little under 1 ounce.

"Usually if it's less than 25 grams, our people are going to issue a
citation," said Capt. Mike Plumer of the Sheriff's Office.

But that is more than three times the 7 ounces that would trigger a
criminal charge under Nicks' proposed guidelines.

"What I envision is we, in the next couple of months, ... come up with a
consistent approach and develop guidelines so we all behave in the same
way, and distinguish between cases that should be handled as criminal
prosecutions and ordinance violations, and then behave consistently," Nicks
said.