As of today, the partial decriminalization of marijuana has officially been achieved via ballot measure for the first time in American history. After passing 65-35 in November, Question 2 is now law and Massachusetts has joined the eleven other U.S. states to have decriminalized possession of small amounts of pot. As with any significant change in the law, only time and creative lawyering will give us an outline of the full contours of this thing. Meanwhile:

(1) Decriminalization is not legalization. All together now, kids: No one may lawfully possess marijuana in the Commonwealth of Massachusetts, any more than they may lawfully ignore the speed limit or park in a handicapped parking space.  (If you’re already interested in the subject enough to read this, I’m pretty sure that you already know that, but it’s a good place to start.) In fact, as far as I am aware, marijuana has never been formally legalized anywhere in the world. (Even the Netherlands officially only “tolerates” marijuana possession, although perhaps somewhat more enthusiastically than Sarah Palin tolerates the gays.) Possession of an ounce or under is now punishable by a $100 fine—less than most traffic tickets—rather than the previous minimum six months of administrative probation, and civil citations issued under this provision will not appear on an individual’s criminal record. Current trafficking and distribution statutes remain as they were, leaving most dealers in urban areas subject to the two-year mandatory minimum for intent to distribute in a school zone. Offenders under 18 will be required to complete a drug education class within a year or face a $1,000 fine and the possibility of delinquincy proceedings in Juvenile Court. (I feel further compelled to remind you that driving under the influence of marijuana [or anything else] is also still just as bad an idea today as it was yesterday.)

(2) Contest it! Unless you really can’t make time to go to court, it will almost certainly be worth scheduling and showing up to a clerk-magistrate’s hearing to contest the citation. Keeping in mind that the police report will likely contain little more than a basic description of what was seized (as well the usual allusion to the officer’s “training and experience”), that the arresting officer will not be required to appear, and that any drugs seized will almost certainly never be sent out for testing at the state crime lab, you may well be able to convince the clerk-magistrate that the record doesn’t meet the “preponderance of the evidence” standard which is required for civil citations to issue. All clerk-magistrates run their own little private duchies, however, so I would expect the mileage on this argument to vary widely between district courts.

(2)(a) In a possible oversight, the new statute makes no provision for an appeal from the clerk-magistrate’s decision. (Smooth one, Soros!) In a helpful interpretative memo (PDF), District Court Chief Justice Lynda Connolly has suggested that the only possibility for review of an adverse finding under the new law would therefore be a request for certiori (i.e., discretionary review) in your friendly neighborhood Superior Court. This is a particularly fascinating aspect of the new law, and I’ll be interested to see how it plays out.

(2)(b) Then again, if you’re the kind of person who leaves room in your monthly budget for recreational drugs, you can probably afford to just step up and pay the fine already. Just pretend that you’re paying the tax that any objectively rational democratic society should have already levied on soft drugs. The Commonwealth could certainly use the money.

(3) The Commonwealth may–and almost certainly will–still criminalize public use of marijuana. Local municipalities are already scrambling to ensure that Snoop fans do not live out their dreams of rollin’ down the street smokin’ indo, no matter where their minds and/or money may be. Fair enough.

(4) Search and seizure. The possession of marijuana will almost certainly still be grounds for police to stop and search you and/or your vehicle, since marijuana is itself involved in a number of crimes beyond possession—i.e., possession of more than one ounce, distribution, driving under the influence—for which there may be probable cause for arrest. That’s my take on it, anyway; again, there are still plenty of possibilities here for interesting loopholes.

(4)(a) Identification. Speaking of loopholes: Once stopped by police, the new law seems to provide no requirement that individuals in possession of marijuana be required to identify themselves, nor any authority for police to detain them if they do not. I’m not really totally sure about this one, legally, but it certainly seems to prevent a pretty significant potential enforcement problems, especially since the new law establishes different penalties for juveniles and adults.

Matt Cameron