Vertical (Mis)Communication: “Re-criminalization” of Marijuana in Massachusetts and Newfound Federal Deference to State Marijuana Laws

Stephen Dushko, Staff Writer

On November 4, 2008, the Commonwealth of Massachusetts voted on a ballot question entitled “An Act Establishing a Sensible State Marihuana Policy,” which had the effect of decriminalizing the possession of amounts of marijuana one ounce or less.1 The Act passed by a sixty-five percent majority vote.2 Under the new law, possession of one ounce or less of marijuana is a civil infraction, subject only to a $100 fine and forfeiture of the marijuana; all other criminal and civil penalties are prohibited, with an important exception.3 Previously, possession of any amount of marijuana was subject to imprisonment of up to six months and a fine of up to $500.4 The fact that a majority of voting citizens in Massachusetts favored decreasing penalties for marijuana possession may indicate that the prevailing social norms in Massachusetts, concerning consumption of THC,5 have changed since marijuana was initially outlawed, or it may reflect a recognition that the economic and social costs of labeling marijuana use criminal outweigh the benefits.6 Regardless of the rationale, possession of a small amount of marijuana is no longer an arrestable offense under Massachusetts state law.

Apart from the obvious implications for Massachusetts as a whole, this change in the law has different implications for the localities within the state, and provides an opportunity to examine the interaction with local, state, and federal law.  On the local level, governments that wish to maintain the more stringent set of rules are driven to enact regulations that increase penalties for possession or use of marijuana.  Framingham, Massachusetts, for example, enacted health regulations shortly after the state act went into effect that increased the penalties both for the user and the owner of any public establishment in which marijuana is used.7 Smoking marijuana in public, in Framingham, is now subject to a $50 fine, and the owner of an establishment in which a patron smokes marijuana will pay $100 for the first incident. 8 For the second offense, a $200 fine is imposed and up to $300 for the third.9 While these penalties are certainly not as severe as the previous state law, it is apparent that a majority of the Framingham town board was on the minority side of the Question 2 vote.

At first blush, this looks like a locality rebuffing the decision of the majority of Massachusetts for lessening the penalty for possession.  However, § 32L specifically provides that the political subdivisions of the state may enact ordinances or bylaws to prohibit public consumption of marijuana.10 Framingham is not the only example of a town that has either taken advantage of, or considered taking advantage of, this exception to the new general rule.11 It is also of paramount importance to consider the fact that the general federal prohibition on both consumption and possession of marijuana is still in effect.  The Supreme Court has found this prohibition constitutional and unaffected by state law to the contrary.12

To the extent that federal law trumps state law, the issue is moot – almost.  The most recent complicating factor was the announcement by United States Attorney General Eric Holder that the Justice Department under President Obama would relax its drug enforcement policy.13 Under the announced policy, dispensers of medical marijuana would face raids and prosecution only when they were in violation of both state and federal law.14 However, a week after Holder’s announcement, the DEA raided a licensed dispensary in San Francisco.15 This calls into question the extent to which the DEA and federal prosecutors are working together with state and local officials to determine whether there has been a violation of state law.

The ongoing changes in policy and law leave many questions to resonate.  Does local action of the type permitted by § 32L pose a threat to the general goal, in some states, of decriminalizing possession of small amounts of marijuana?  That is, will local exceptions devour states’ rules?  Will the new federal policy truly allow states to control the legal status of marijuana within their boundaries, or is the Attorney General merely providing lip service to state decisions?

As for the interaction between state and local rules, so long as the rule and the exception occupy different spaces, they should operate without substantial cross-interference.  In Massachusetts, the general rule limits the penalties for possession, but does not purport to give marijuana smokers free license to engage in their habit wherever they choose – there is still a $100 fine, and whatever marijuana they have can be taken away from them.16 The exception provides towns and cities with discretion as to whether additional deterrents are necessary to keep marijuana smokers from gracing the public with displays of their new found quasi-freedom.

If the Federal policy is in fact applied as it was outlined by Attorney General Holder, it will require a great deal of communication between the state and federal governments.  Further, it will require continued federal deference to the decisions of state legislatures.  A successful future for policies on all levels will require governmental bodies on the local, state, and federal levels to cooperate on enforcement and non-enforcement, effectively making room for policy variations on all levels.  Massachusetts and the Obama administration have taken steps in the right direction, but the complications in each policy show that complete synergy is still a distant horizon.

Amanda Sherman & Eric Schillinger, editors.


1Text of Question 2:  Decriminalizing Marijuana,, (last visited May 2, 2009).

2 David Able, Voters Approve Marijuana Law Change, Boston Globe, Nov. 5, 2008, at B6.

3 Question 2, supra note 1.

4 Compare Mass. Gen. Laws ch. 94C, § 34 (1998) (amended by Mass. Gen. Laws ch. 94C, § 32L) (the older version of the statute), with Mass. Gen. Laws ch. 94C, § 32L (2008).

5 Tetrahydrocannabinol, the active psychoactive chemical in the marijuana plant.

6 See generally James Austin, The JFA Inst., Rethinking the Consequences of Decriminalizing Marijuana (2005), (last visited May 2, 2009) (outlining various costs of enforcing marijuana prohibitions and suggesting that criminalization would reduce social costs and free law enforcement resources to protect against more serious crimes).

7 Dan Macdonald, Framingham Board OKs New Marijuana Regulations, MetroWest Daily News, Jan. 22, 2009, (last visited May 2, 2009) (describing the regulations enacted by the town board).

8 Id.

9 Id.

10 Mass. Gen. Laws ch. 94, § 32L (2008)

11 The exact purpose and effect of these bylaws and ordinances have been the subject of much debate and much spin by various groups.  Compare MassCann, Legal Reform, (last visited May 2, 2009) (shining a negative light on the activities of cities and towns in considering by-laws), with Chris Faraone, Question 2 Backlash Heats Up: Rolling the Genie Back in the Bag, Boston Phoenix, Jan. 28, 2009, (last visited May 2, 2009) (a tongue-in-cheek look at the difficulties in enforcement under the law as amended, as well as the motivation for localities to create bylaws and ordinances).

12 See generally Gonzales v. Raich, 545 U.S. 1 (2005) (finding that criminalization of marijuana was within Congress’s powers to regulate commerce and denying a claim that intrastate use was outside the ambit of federal law).

13 David Johnston & Neil A. Lewis, Obama Administration to Stop Raids on Medical Marijuana Dispensers, N.Y. Times, Mar. 19, 2009, at A20.

14 See Stephen Dinan & Ben Conery, Bush Holdovers at DEA Continue Pot Raids; Obama Vowed to End Policy, Wash. Times, Feb. 5, 2009, at A01.

15 Rachel Gordon, Federal Agents Raid Medicinal Pot Club; San Francisco, San Francisco Chronicle, Mar. 26, 2009, at B3.  See also Press Release, Marijuana Policy Project, Medical Marijuana Raid Raises Questions About Obama Policy (Mar. 26, 2009), available at

16 See Question 2, supra note 1 and accompanying text.

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