Drug law reform advocates scored a decisive victory last November when voters approved, by a 65 to 35 margin, Question 2, which decriminalized possession of small amounts of marijuana. Under the new law, which went into effect in January, possession of one ounce or less of pot became a civil offense, punishable by a $100 fine but sparing the defendant a criminal record, sanctions like a loss of federal student loans, and even possible jail time.
But even with such a clear victory, reformers have not been able to rest easy. While Question 2 garnered support from some surprising sectors (law enforcement professionals who see prosecution for minor possession as unduly harsh and a burden on the system; conservatives who question the tens of millions spent in Massachusetts each year to arrest and process the defendants), it also faced formidable political opposition from the state's district attorneys, police chiefs and the Patrick administration. Indeed, no sooner had voters approved the law than opponents began strategizing to undercut its intent.
Their first line of attack: municipal ordinances. To the great irritation of some drug law reformers, Question 2 included a provision that allows towns and cities to create their own ordinances targeting small-time possession in public places. Prompted by a model ordinance distributed by Attorney General Martha Coakley, a number of communities have passed or are considering public smoking ordinances that would impose additional civil fines, sometimes triple the amount mandated by Question 2. Those communities include Springfield, where the City Council is poised to approve such an ordinance next week.
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In Springfield, the public smoking ordinance was introduced by City Councilor Jimmy Ferrera, a state Trial Court employee who supervises people sentenced to community service. Under the ordinance, a first-time ticket for smoking pot in public would prompt a $100 fine on top of the $100 fine created by Question 2. The municipal fine would increase to $200 for a second ticket and $300 for any further tickets. Originally, Ferrera had proposed a $300 fine for all offenses; the fees were staggered after some councilors and members of the public expressed concern that the fine was too steep for first- and second-time offenders.
Ferrera told the Advocate he introduced the ordinance to create consistency in the law. Right now, he noted, police can arrest someone for having an open container of alcohol in public, but not arrest someone for smoking a joint in public."We're just trying to continue our fight on quality-of-life issues," he said.
Ferrera said he was also inspired by similar efforts in other communities. "I just didn't want to see Springfield kind of forgotten," he said. "We could be a leader in the region."
The ordinance, he added, would not create a dramatic shift in the Police Department's day-to-day business. "Believe me & [public marijuana smoking] is not a major priority for the police," Ferrera said. "Murder, rapes robberies—those are major categories for the police, especially with tough budget cuts when there a reduction in personnel."
Several communities—including Salem, Lynn, Methuen and Medway—have already passed public possession ordinances with fines ranging from $100 to $300. MassCann—the Massachusetts chapter of the National Organization for the Reform of Marijuana Laws, or NORML—has been tracking similar efforts in other towns and cities. According to MassCann, at least 11 municipal governments besides Springfield—including Pittsfield and North Adams—have similar efforts underway. Others are likely to join the list; in Chicopee, for example, the police chief has called on the City Council to create a similar ordinance.
"These people who were opposed to Question 2—who we sometimes refer to as 'sore losers'—are trying to overturn the stated will of the voters," said Bill Downing, president of MassCann.
Question 2 was opposed by a long list of law enforcement professionals; the Massachusetts District Attorneys, in particular, threw considerable political capital and cash at trying to defeat the new law, which they warned would send a pro-drug message to kids. That comes as no surprise to Downing and other reformers, who note that police officers' and prosecutors' livelihoods depend in large part on drug arrests and prosecutions. "You have people who have a professional interest in maintaining the status quo in the drug war,"Downing said.
But for elected officials like Ferrera to try to circumvent the intent of Question 2 especially grates backers of the measure. "I think it's shameful. I think it's an insult," said Downing. "It should be up to the citizens of that city to decide, and the citizens of Springfield have already decided. They voted for a $100 fine."
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Ferrera maintains there's nothing wrong with local governments adding their own marijuana fines; after all, when voters approved Question 2, they also approved its provision that allowed the creation of municipal ordinances.
In fact, the language of the law did not specify that these municipal ordinances had to be civil in nature—leading to an interpretation that cities and towns could, in fact, recriminalize minor pot possession. But that's a step Ferrera says he's not interested in taking. "I don't really think that was the original intent of Question 2, to make it criminal at this stage of the game," he said. "That would be pushing the envelope a little bit too much, I think."
The fact that Question 2 allowed for the creation of any municipal penalties was a point of some contention among various drug-reform advocates. "Unfortunately, the language of Question 2—which was not written by my organization—allowed for local ordinances," said MassCann's Downing.
Question 2 was drafted by the Committee for Sensible Marijuana Policy, a non-profit ballot question committee largely funded by billionaire drug reform activist George Soros. CSMP manager Whitney Taylor was unavailable for comment last week; her voice mail referred reporters to the Washington, D.C.-based Marijuana Policy Project.
"We really can't argue with the law," which allowed cities and towns to create their own civil fines, Dan Bernath, an MPP spokesman, told the Advocate. "That said," he added, "it seems that it's premature for localities to pass these ordinances before they really see how the law works." Eleven other states have already decriminalized minor pot possession, some as long ago as the 1970s. And studies show that in those states, marijuana use and crime rates have not increased as a result of the law, he noted.
Bernath laughed off an earlier statement made by Ferrera, who warned that if neighboring communities toughened up their public marijuana laws and Springfield didn't, the city would become a haven for pot smokers. "That's a frivolous fear," Bernath said. "To continue wringing our hands over this is silly and little bit embarrassing.'
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Ferrera's ordinance received two necessary approvals from the City Council in February; on March 23, the Council will take a required third vote.
The ordinance will then go to Mayor Domenic Sarno for approval. According to mayoral spokesman Tom Walsh, it would be "premature" for Sarno to take a position on the ordinance, since he's yet to see it in its final form.
"Mayor Sarno will solicit input from public safety officials including Police Commissioner William Fitchet and Hampden County District Attorney William Bennett prior to reaching a decision," Walsh wrote in a statement to the Advocate. "Mayor Sarno is interested in knowing from the public safety officials whether this ordinance will serve as a valuable tool to combat crime in the city and help to create a better quality of life for our city's residents."
Fitchet has already stated his support of the ordinance, while Bennett, for whom Sarno used to work, was vocal in his opposition to Question 2.
Ferrera's ordinance has drawn some public opposition, including opposition from people who've spoken out against it at earlier Council meetings. They include Bill Newman, a Northampton civil liberties attorney, who urged the Council not to rush to create an ordinance and warned it could clog up the court system with people protesting fines that could reach $400.
Downing, of MassCann, said it's up to the public to pressure elected officials to respect the intent of the law voters overwhelmingly passed in November. In a case like this, that's not always easy. "It's difficult to get people to stand up in front of town officials and speak in favor of an issue that has such a heavy social stigma attached to it, especially if you've got police officials there," Downing said. "Unfortunately, it's up to the people themselves to assert their rights."
