Towns try to punish public marijuana use

Officials want children shielded

By Jonathan Saltzman

Globe Staff / March 25, 2009

Dozens of Massachusetts cities and towns are taking steps to impose stiff new fines for smoking marijuana in public and even to charge some violators with misdemeanors, a trend that critics say subverts the state ballot question passed overwhelmingly last fall to decriminalize possession of small amounts of marijuana.

In recent weeks, at least seven communities - Duxbury, Lynn, Methuen, Medway, Milford, Salem, and Springfield - have passed bylaws that target people who light up in public. And two dozen cities and towns expect to vote this spring on similar measures, which proponents liken to local open container laws that ban drinking alcohol in public.

Police officials say they want to discourage flagrant marijuana smoking, particularly in public parks, schoolyards, and on beaches where young children gather. While last year's ballot initiative reduced possession of an ounce or less from a misdemeanor to a civil infraction carrying a $100 fine, police say that some marijuana smokers mistakenly believe that the voters legalized the drug entirely.

"If you're smoking marijuana in front of schoolchildren, to me that's a little bit more serious than smoking a joint by yourself out in the middle of the woods," said Salem police Captain Brian Gilligan. His city recently authorized officers to fine public smokers $300 in addition to the $100 fine for possession. The Salem bylaw also lets officers give them a misdemeanor summons, although Gilligan predicted that few will get them.

Advocates of last fall's ballot initiative say the new civil fines for smoking marijuana in public are, at best, unnecessary because those individuals can already be fined for possession. At worst, they say, bylaws that treat smoking violations as a misdemeanor are a backdoor attempt to subvert the will of Massachusetts voters, who approved decriminalization in November by a margin of nearly 2 to 1.

"This seems to be much more about people who never liked the law to begin with looking for an end run around the will of the voters," said Dan Bernath, a spokesman for the Marijuana Policy Project, an advocacy group in Washington, D.C., that rallied support for the ballot initiative known as Question 2. "And it's particularly disturbing because they were wrong on this policy. The voters were right."

Question 2 passed by a vote of 65 to 35 percent, making Massachusetts one of a dozen states to decriminalize possession of small amounts of marijuana, Bernath said. Proponents of the change, including billionaire financier George Soros, who spent more than $400,000 in favor of decriminalization, said that it would ensure that those caught with small quantities would avoid the taint of a criminal record.

The measure, which took effect Jan. 2, turned possession of an ounce or less of marijuana into a civil offense on par with a traffic violation. (Previously, simple possession was a misdemeanor that carried penalties of up to six months in jail and a fine of up to $500.) Violators under 18 must attend a drug-awareness program that includes 10 hours of community service. The fine increases to $1,000 for those who fail to complete the program within a year.

While the state law goes after those who possess marijuana, the cities and towns are now specifically targeting those who smoke the drug in public.

The ballot question passed over the objections of the Massachusetts Chiefs of Police Association, the Massachusetts Association of District Attorneys, Attorney General Martha Coakley, and Governor Deval Patrick. They said decriminalization sends the wrong message and create a bureaucratic nightmare.

Spokespersons for state public safety officials and the court system said they did not keep track of how many people have received citations so far.

The statewide referendum specifically said each city and town could pass bylaws banning public use of marijuana, and communities across the state have started doing that. They are relying on a sample bylaw provided by Coakley's office, which says fines can be imposed, a criminal penalty, or both, in addition to the $100 possession fine.

Coakley's office reviews bylaws enacted to make sure they pass constitutional muster, but takes no position on penalizing people who smoke in public, said spokeswoman Emily LaGrassa.

In recent weeks, Duxbury's Town Meeting overwhelmingly approved imposing a $300 fine on people who smoke marijuana in public. Methuen's City Council passed a bylaw to impose a $100 fine on people who light up at parks, playgrounds, on school grounds, or a public beach.

Mayor William M. Manzi III of Methuen said he sponsored the measure because he wants to keep those areas free of marijuana and alcohol. "You can already be fined under a local ordinance for having an open container of Budweiser," he said.

To show that Methuen was being even-handed, he added, the council increased the fine for drinking alcohol in public from $50 to $100, the same as the fine for public marijuana smoking.

Some communities, however, are also authorizing officers to give people who smoke in public a misdemeanor summons.

Residents attending Milford's Town Meeting, for example, recently approved such a bylaw. The measure also imposes a fine of $100 for a first offense, $200 for a second offense, and $300 for subsequent offenses.

Police Chief Thomas O'Loughlin of Milford said he favored decriminalization last fall. But he supported the local bylaw because police need a tool to contend with young people who flout state law by smoking in public, sometimes in groups that make it difficult to determine who owns the marijuana.

"In the circumstances where you have a dozen young people or two dozen young people out in a park at night, OK, who possesses what?" he said.

He said it was unlikely that officers would charge smokers with a misdemeanor, given that police have long exercised discretion when arresting someone for marijuana possession. Last year, before decriminalization, Milford police arrested only 34 people for possession, he said, a fraction of those police could have charged.

Since marijuana has been decriminalized, he added, officers have handed out only one citation, and that was to a high school student whose parents wanted him to get counseling.

"Believe me, we're not walking around town looking through people's windows to see whether they're smoking a joint," O'Loughlin said.

But critics of the bylaws are skeptical.

Steven Epstein, a Georgetown lawyer and founder of the Massachusetts Cannabis Reform Coalition, said he believes the efforts amount to recriminalization and are "all motivated by police chiefs who lost their power when they no longer had the arbitrary power to arrest people for possessing or using marijuana."

Saltzman can be reached at jsaltzman@globe.com.

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