SMOKY SUBJECT

Enforcement Of New Marijuana Law Raises Weedy Issues

The Observer views 2009 with optimism and dread. It depends on the
day. What's raising my spirits exponentially are visions of the
enforcement of Question 2, the referendum approved in November that
reduces the penalty for possession of an ounce or less of marijuana
from a criminal offense to a giggle.

Question 2 went into effect the day before yesterday. On first
inspection, the law looks swell. Anyone over room temperature IQ knows
that the criminal prosecution of someone with some dope in his pocket
is lunacy. And the mere idea that someone could lose a student loan or
flunk a job application because of a dope record is appalling.

Better still, the vast amount of money we spend busting and
prosecuting people for illegal marijuana possession can now be devoted
to chasing the real baddies.

While the goals are admirable, the law's implementation belongs in
Chapter 2 of "Alice's Adventures In Wonderland," the one where she
says, "Let me see: four times five is twelve, and four times six is
thirteen . . ."

It will be the source of much levity and, I predict, end up in a
Letterman monologue. What the passage of Question 2 does is raise a
blizzard of brain teasers best addressed by Talmudic scholars.

My favorite will be the means by which police officers determine if
the marijuana found on someone is more than an ounce. A woman in media
relations at the Boston Police Department told me last week that
officers are trained at the police academy to use their discretion
about what's an ounce and what's over an ounce.

Whatever that means.

I envision something along these lines:

"Frank, does this look over a lid to you?

"No, Jimmy, it actually looks light for a lid. Back in the day, I'd
have called the guy on it before I bought any. I always had my scale
handy."

"Yeah, but you don't have a scale. I don't have a scale. Nobody has a
scale."

"So what do we do?"

"Rock paper scissors."

"Bingo."

The civil penalty for possessing an ounce of dope or less for personal
use is now a feather light hundred dollar fine - the price of a ticket
for parking in front of a Boston fire hydrant. If you believe it's
crazy to bother anyone carrying dope, then let's can the fines and
legalize the stuff.

But if you believe that smoking marijuana is a bad idea, that it is a
gateway drug to heavier stuff, then we need a civil penalty consistent
with that message. I'm thinking the fine should start at, say, $300,
rise to $500 for the second citation and hit at a grand for a
trifecta. What we've got now is the worst of both worlds.

I talked to a veteran Boston police officer to see what he thinks
about Question 2. The man doesn't want to be quoted by name, but he
made his feelings clear.

"The police and DAs' offices were absolutely asleep at the switch on
this one," he says. "You only heard one side of it. Shame on us.

"Do we start carrying scales?" he asks. "If we use scales, the scale
now becomes subject to motions in court. A defense attorney is now
going to say, 'I want that scale. Has it been tampered with? When was
the last time it was tested?' "

He adds, "There is no legislation written we know of that says, OK,
you still have the right to search and seize. Nothing's defined."
Before the advent of the new law, he points out, simple dope
possession was a misdemeanor, not a felony, and cops routinely let
people go if they were found with dope on them.

"If we had someone with some dope in his pocket and they had no
record," he adds, "We almost always let them go. You never got
arrested for it. Two bags of weed? See you later."

Two lids in someone's pocket could be his monthly stash, the cop tells
me, and the guy just happened to have made his regular buy when caught
by police. "It's still possible that two ounces is for personal use."

Somebody else could be carrying less than an ounce - 4 or 5 grams
worth in separately wrapped dime bags ($10 each). This is a red flag
to a reasonable person of intent to sell. What's the call?

I'm sure there is truth to the charge that police are exaggerating the
mayhem that will ensue, just as there surely is truth that proponents
are lowballing the problems in the name of Doobie Nation and World
Peace.

Me, I think it will eventually get worked out, but not before we
witness some hall-of-fame legal mud-wrestling.

My guy maintains that much of the motivation behind Question 2 comes
from "liberal America who want to save poor inner city black kids from
getting records" through the state CORI law. (Criminal Offender Record
Information).

"Look, most of the guys agree that there definitely needs to be CORI
reform but this isn't the way to do it," he says. "And there's also a
very valid argument for legalizing marijuana. I'm not saying I agree
with it, but you just have to look at the money being spent against
drugs."

For the record, I've heard nary a word of concern from the hordes of
people I know who supported Question 2 about the effect of CORI on
"inner-city black kids."

They just think the idea of criminal prosecution for a small amount of
dope is irrational. A younger cohort simply wants to be left alone to
smoke a bone in peace.

Let the games begin.