Did we accidentally legalize pot?

Please welcome guest poster Jon

On January 2^nd, Question 2, the Massachusetts imitative to decriminalize marijuana possession, came into effect. As (co-)President of Students for Sensible Drug Policy on campus, I am, of course, in favor of any steps that can end the senseless damage the War on Drugs has wreaked on our communities. This is why the November passage of Question 2 was such a satisfying victory.

However, it now appears that a loophole in the initiative has all but legalized marijuana in the state. As passed, Question 2 reduces the penalty for possession (up to one ounce) to a $100 fine, plus mandatory drug counseling for minors. However, police chiefs across the state are essentially giving up on enforcement altogether:

…in what is likely a clever sleight of hand by legalization advocates, the law, by pulling arrest off the table as an option, deprives police officers of any means to compel people caught with marijuana to show identification. Anybody willing to say “Donald Duck” to a cop who nabs him with a joint and asks for a name can escape even the $100 fine.

Marijuana is now not only de facto legal in a few Massachusetts communities because police find the requirements of decriminalization too demanding, it is now effectively sanction-free in the entire state for anybody willing to face down a cop.

Of course, some municipalities such as Framingham are looking to criminalize public marijuana smoking, or at least regulate it in the same way as tobacco, but there are several important take-away points. Among them, that despite the hysterical slander of the initiative from the euphemistically-titled “Coalition for Safe Streets” (illegally funded by state attorneys general!), mere marijuana possession does not pose a significant threat to public safety. After all, the police chiefs don’t see it as one, and in the week or so since the initiative’s enactment, the Bay State has not turned into a hellscape devoid of human life.

Secondly, the effect of the initiative will be to rip the stigma off of drugs. One of the biggest problems with drug policy reform has been that the constant demonization of inert substances has fueled widespread fear and misinformation, attitudes which reward politicians who take black-and-white, law-and-order approaches to drug policy – precisely the kind that have put millions of otherwise peaceful people in jail, and have utterly failed to change the real harms of drug use. That a city council can now regulate marijuana as it does tobacco is actually rather revolutionary – it implicitly acknowledges that drugs are a public health concern, not a criminal justice one.

Finally, this incident should also highlight the fact that law is as much a matter of enforcement as it is one of legislation. If the police won’t enforce it, it’s virtually meaningless. This, incidentally, is why online pornography is legal today – while it technically can be prosecuted under the Wire Act, because it pales next much larger crimes (child porn, cyber-terrorism, etc.), it’s become tacitly legal. When it comes time to repealing harsh drug laws elsewhere, as well as other socially restrictive legislation, it can be equally useful to change the cultural climate so that law enforcement officials can distinguish between important crimes and mere technical ones.

I should note, of course, that I honestly don’t think that the initiative was intended as a backdoor to legalization. I’ve met with the leaders of the initiative movement, the Committee for Sensible Marijuana Policy, and it was stressed rather forcefully that this was a decriminalization measure. It’s always possible that this was in the back of their minds all along, but I wouldn’t cast any aspersions to that effect.