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