Drug Policy

The Wrong Way to Decriminalize?

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In a Boston Globe op-ed piece, cannabis expert Lester Grinspoon, author of Marijuana Reconsidered and co-author of Marijuana, the Forbidden Medicinecriticizes a marijuana decriminalization measure that's expected to appear on the Massachusetts ballot next November. Grinspoon, an emeritus professor of psychiatry at Harvard Medical School, agrees with the goal of eliminating criminal penalties for minor marijuana offenses. But he worries that the initiative would create a new offense: "internal possession of marijuana metabolites." That's because the measure would impose a $100 fine for possession of up to an ounce of marijuana, including possession indicated by a positive drug test. Grinspoon notes that marijuana tests do not demonstrate intoxication; they merely indicate that the subject has smoked pot sometime in the recent past. For daily pot smokers, the window of detection can be as long as a month.

The Marijuana Policy Project, the D.C.-based group backing the initiative, says internal possession is already arguably illegal in Massachusetts. MPP says it included internal possession to keep the initiative simple and to preclude the government from punishing a positive test result more severely than holding a bag of pot. It emphasizes that citations based on internal possession would be rare, since the government can legally obtain a urine or blood sample for testing only in limited circumstances, and that the punishment would never exceed a $100 fine. For the vast majority of pot smokers who come to the attention of police, that would be a welcome change. As with speeding tickets, they could pay their fines by mail, they would not have to appear in court, they would not face the possibility of jail, and they would not have criminal records. Just as important, pot smokers would avoid collateral sanctions such as suspension of their driver's licenses, forfeiture of their professional licenses, loss of their right to own a firearm, and ineligibility for adoption, student aid, and unemployment benefits. While Grinspoon may be right that the initiative could have been better drafted, on the whole it seems like a big improvement over current law.

[Thanks to CK for the link.]

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  1. What about Grinspoon’s argument about most marijuana being over 2.5% THC?

  2. It is never a good idea to make it profitable for the state to enforce the law.

  3. I can see the prohibitionistas stacking charges at $100 / offense. A potential cash cow for the government, without the smell and mess of pure legalization. Not a win for reform just invites more harrassment.

  4. This is not the worst thing in the world. What you have, in essence, is people paying tax (when they get pinched) for having MJ. No criminality, no bullshit. This provides a path for the government, and voters, to see that a) crime won’t explode, b) harmless people getting bogged down in court and/or jail will (mostly) stop, and c) it provides a revenue stream.

    A, B, and C above are all “selling points” for legalization. If “fines” work the same way, and work well, it is a path to legalization. Why? Because once the government realizes that it’s a revenue generator, they’ll want money from all the pot, not just that which they catch. How to get revenue from all the pot? Legalize it.

  5. Do pot-smoking urolagnia fetishists have “internal possession with intent to distrubute”? If so, what’s the minimum sentence?

  6. Hey!!!! This isn’t right!!!! Drugs are bad!!!

  7. This coupled with universal health care means you have to get a yearly physical, and then you have to pay $100 when they detect weed in your hair follicles.

  8. It is never a good idea to make it profitable for the state to enforce the law.

    But with the costs of arresting, charging, obtaining warrants, testing, beuracratic expenses, (those drones ain’t exactly cheap) wouldn’t a mere $100 fine make enforcement non profitable? With traffic offense ripoffs these expenses are limited. A cop can’t say I saw internal possession. He has to detain you, escort you someplace to get tested, wait for the sample, document chain of custody, etc. To me, that just seems to much to go through for a measley $100.

  9. “This coupled with universal health care means you have to get a yearly physical, and then you have to pay $100 when they detect weed in your hair follicles.”

    I can see it now, in a not too distant future…

    NANNY STATE SWAT TEAM COMMANDER:
    Better send in the SWAT team, he missed his yearly physical. Agonizers set to annoy and pester.

    PISSED OFF CITIZEN:
    You’ll never take me alive coppers.

  10. What about Grinspoon’s argument about most marijuana being over 2.5% THC?

    If the unintended consequence is the ubiquity of full melt hash, then as Martha says, “It’s a good thing”.

  11. Sounds similar to the Todd Barry solution (I paraphrase wildly):

    Make pot legal,…but still throw potheads in prison,…execute them several times,…and then give them a $50 fine.

    Pothead: But I thought pot was legal?!
    Officer: Pot is legal. Being a pothead isn’t. If you weren’t a pothead, you’d understand.

  12. This coupled with universal health care means you have to get a yearly physical, and then you have to pay $100 when they detect weed in your hair follicles.

    See NORML’s hints on how to avoid detection during drug tests.

    It worked for me last year…

  13. Episiarch –

    You attribute an astounding amount of common-sense and logical insight capacity to legislators. All your A’s and B’s and C’s and so forth…fantastic in a world where politicians follow evidence and cost/benefit analyses when forming public policy.

    For here, the real world, not so much.

    I’m being a bit cynical today, and I do sincerely hope you are right and that this will not be simply a back door into at-will state harassment and “fines”, which will make busting pot smokers as attractive as policing traffic.

  14. How much I’d worry about the internal possesion offense is highly dependent on how they test it. $100 for >50 ng/mL in urine with one of the good wet chem tests confirmed by GC/MS (which I think is still the SAMHSA standard) doesn’t worry me – that’s rigorous enough that they won’t get false positives and by the time they pay for the test, the state will be in the red, so they won’t troll for smokers to rack up tickets. If the cutoffs and methods aren’t specified, though, be very worried, and not just if you’re a smoker.

  15. Grinspoon’s op-ed piece confirms what I’ve said many times: Those of you who think legalizing marijuana is a good way to get the camel’s nose under the tent will only succeed in getting the camel castrated.
    The correct approach is to take on the entire War on Drugs fundamentally.
    Our First Amendment gave us the right to put what we wish into our minds. The Second Amendment SHOULD HAVE given us the right to put whatever we wish into our bodies.
    That thought, coupled with the demonstrable failure of Prohibition, will either end the War on Drugs, or it won’t.
    If Soros had a lick of sense, he would make my thought into a TV campaign.

  16. DEG –

    Um, do you mean the fourth amendment? The right to be secure in your person seems a touch more applicable than the right to keep and bear arms…unless these are *weaponized* hallucinogens we are talking about. 😉

  17. Do pot-smoking urolagnia fetishists have “internal possession with intent to distrubute”? If so, what’s the minimum sentence?

    Hilarious! I laughed hard enough to distribute in my pants. ;o)

  18. Damn, I keep leaving out words today. I nearly, but didn’t pee my pants.

  19. Elemenope,
    Do think the First Amendment is important?
    Shouldn’t the Second Amendment have been almost as important?
    I’m not trying to number the things.
    The Founders were slap-dash with the Bill of Rights. Let’s face it.

  20. Keeping pot illegal continues the black market. Continuing the black market gives aid and comfort to America’s enemies, both foreign and domestic.

    Pot is arguably the largest of the illegal consumer intoxicants. Its distribution is a source of profit for gangsters and smugglers that helps to make other drugs more worthwhile to take the risk of importing. So smugglers, who also ship cocaine and heroin for the terrorist army producers in South America and Asia, are subsidized by the pot smuggling.

    Domestically, gangsters and distributors are poly-drug merchants who maintain inventories of anything with a market. Including pot.

    As long as pot is illegal the government is effectively prohibiting society from regulating, licensing and taxing the predatory criminal and terrorist anarchy out of the markets. It is the government that is giving “aid and comfort” to America’s enemies, both foreign and domestic.

  21. Grinspoon is a misguided nitpicking person.

  22. DEG –

    See what I did there? I COMPLETELY SKIPPED OVER the part of your comment that was capitalized, thus rendering my comment in response stupid. You caught me being an idiot. 😉

    Still, I think a good-faith reading of the Fourth amendment provides a decent basis for preventing the criminalization of the voluntary ingestion of any substance.

  23. Elemenope,
    The problem with the Fourth Amendment is it will never make Rosie O’Donnell nor Anne Heche secure in their personhoods.
    Let’s get real: All Amendments beyond the First faded into obscurity long, long ago.
    And John Adams shit on the First before the ink was dry.

  24. I petitioned for this initiative. The object is to make it so people don’t get denied housing assistance, food stamps, financial aid, not to mention VOTING RIGHTS. The problem in Mass is that you have local lowest priority measures and in a lot of places the cops just don’t give a shit, as long as you’re white. Prohibition is about having the option to destroy someone’s life if they step out of line.

    If this passes the next step would be medical, which in Mass means that the government is obligated to grow it and give it away for free.

  25. It emphasizes that citations based on internal possession would be rare, since the government can legally obtain a urine or blood sample for testing only in limited circumstances,

    Hmmmm……I wonder how limited those circumstances will remain….?

  26. “Hmmmm……I wonder how limited those circumstances will remain….?”

    It’s called the 4th amendment and it’s even more difficult to draw fluids. It would remain difficult. No need to try to scare people.

  27. “The problem with the Fourth Amendment is it will never make Rosie O’Donnell nor Anne Heche secure in their personhoods.”

    The 4th amendment has weakened, but it’s not gone. It’s particularly hard to draw fluids from people and this initiative would make it no easier.

  28. The correct approach is to take on the entire War on Drugs fundamentally.

    This approach is just fine for people who have enough money to pay court fees, or people who are white and aren’t targeted, or people who don’t even smoke pot. The war on drugs will never, EVER be repealed with a broad systematic change that must be brought about independently of drug reform. Honestly, just think for a second. Do you really think the police unions, prison guard unions, pharmaceutical companies, chemical companies, oil companies, shit, EVERYONE who holds power in this country would be screwed over by legalizing it. Holding your breath for utopia is a luxury that most people can not afford.

    Decriminalization is a harm reduction strategy, and the only effective way of rolling back the drug war.

  29. correction:

    thats without a broad systematic change

  30. Another commenter kinda-sorta beat me to it, but vis-a-vis the $100 fine, I see no reason why that amount should remain a fixed and reasonable amount. Like cigarette taxes, it would probably go upward by several percentage points every time the friggin’ legislature meets. And who sets the fine, the feds or the states? Will potheads move en masse to, say, Tennessee for a lighter fine, vs. a heftier one in Virginia?

  31. “It’s particularly hard to draw fluids from people. . . ”

    Depends on the fluid and the mood, I suspect.

    Actually, the fourth amendment can be bent in this area, as it always has been when war on drugs comes into play.

    Definitely worth alarming people to be vigilant, but it actually sounds like more or less a good proposal (the measure in Mass., not necessarily the drawing of precious bodily fluids.)

  32. matthew agreed in certain situations, particularly accidents and probation. The thing is, it’s not a criminal offense. This legislation is a huge step forward despite that one nasty provision.

  33. Uh, you all realize, the $100 fine is basically the policy in CA. It works pretty well from what I’ve heard.

  34. It’s called the 4th amendment and it’s even more difficult to draw fluids. It would remain difficult.

    You might want to check on the police power vis a vis drawing blood in suspected drunk driving cases.

  35. I suppose we can continue to delude ourselves that “pot’s bad, mmkay?” and pass these pretend measures that satisfy us emotionally but don’t do a bit of good on the street.

    One ounce? On who’s scales? Sounds fishy to me, like the fraudulent “science” of breathylizers. Throw a few pencil shavings in the confiscated bag and Voila! you have more than an ounce. There’s got to be some extra weed lying around the station somewhere that can help tip the scales.

    Make the limit eight ounces and then I can start to believe there’s some seriousness behind the reform.

  36. There’s no protection against double jeopardy if we are talking about THC metabolites.

    Not just blood and urine, but sweat and saliva can be used to detect THC metabolites, and there is yet to be a ruling whether a police officer touching your skin constitutes an invasive search.

    All-in-all the legislation smacks of a “we’re smarter than you” mentality, but the authors seem to be too smart for their own good. Although “internal possession” may be prosecutable under Mass. law, there has never been a case involving it. Chances were the police and DA’s never realized it. Well, they do now. Thanks, MPP!

  37. “All-in-all the legislation smacks of a “we’re smarter than you” mentality, but the authors seem to be too smart for their own good. Although “internal possession” may be prosecutable under Mass. law, there has never been a case involving it. Chances were the police and DA’s never realized it. Well, they do now. Thanks, MPP!”

    More correctly, it should be thanks, Dr. Grinspoon. He seems to be the one drawing attention to that provision. I haven’t seen anything from MPP publicizing it.

  38. “The war on drugs will never, EVER be repealed with a broad systematic change”

    decriminalizer,
    Why are you so sure?
    Ever heard of “punctuated equilibrium”? It’s a plausible description of how society evolves.

  39. Why are you so sure?

    I was unclear there. I mean to say that the drug war will not go away entirely until we do something about the fascist police state that has seized the federal government. Hillary Clinton is a liar and I don’t think she will stop the DEA from raiding medical marijuana patients if she was elected. National politicians will not repeal the drug war, ever, period. Even if Ron Paul or Kucinich got elected they would be shot if they tried to. Since there is ZERO democracy on the national level in this country, that is to say no way of calling a national referendum on the drug war, the only way to make it go away is to scale it back incrementally on the state level.

    I suppose we can continue to delude ourselves that “pot’s bad, mmkay?” and pass these pretend measures that satisfy us emotionally but don’t do a bit of good on the street.

    Satisfy us emotionall but don’t do a bit of good on the street? Wow, that sounds a lot like calling for total legalization when there is absolutely no way of taking action to bring that about. On the street? What the fuck does an upper middle class white male know about what is good for the “street”? Correct me if I’m wrong in that assumption.

    This is a race and class oriented initiative that is designed to help “the street”, not satisfy the utopian pipe dream of someone who doesn’t have to worry about getting busted anyway.

  40. Thank you for writing about this, Jacob. I read the editorial, and was really hoping to see a rebuttal. It’s good to hear that the error he pointed out isn’t fatal.

    I’m perfectly happy to see the public answer the big question correctly, even if the legislature has to go back and fix some of the details.

  41. I would invite everyone to consider the history of gay marriage in Massachusetts.

    In 2000, a large majority of the legislature was either opposed to gay marriage, or too scared to stand up for it.

    After it had existed without causing the sky to fall for a couple of years, the people who wanted to repeal it couldn’t even get 25% of the legislature to go along in the Constitutional Convention. Once the law was settled, everyone just got used to it, and the opposition withered away.

  42. The Second Amendment SHOULD HAVE given us the right to put whatever we wish into our bodies.

    Oh. I thought you meant you could put a bullet in yourself.

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