Remembering when Maryland joined the decriminalization movement

By Van Smith

Baltimore, March 18, 2019

Scrolling through the archives, I found this, my piece summing up 2014’s momentous cannabis-law changes:

High Times: The winners and losers in Maryland’s pot debate in 2014

By Van Smith

Published in City Paper, Oct. 1, 2014

Come Oct. 1, people in Maryland caught with less than 10 grams of pot or less will no longer face criminal penalties, thanks to the April 7 passage of a marijuana-decriminalization bill in the Maryland General Assembly, which Gov. Martin O’Malley (D) signed on April 14.

In a statement about the measure’s passage, O’Malley used an arcane legal term—desuetude, which refers to the process of a law lapsing or becoming unenforceable by lack of will to prosecute it—to sum up his feelings on the matter. The bill’s ultimate success in the legislature, he said, is “an acknowledgment of the low priority that our courts, our prosecutors, our police, and the vast majority of citizens already attach to this transgression of public order and public health.”

The reality in recent years, O’Malley said, is that “as a matter of judicial economy and prosecutorial discretion, few if any defendants go to prison for a first or even a second offense of marijuana possession in Maryland,” adding that “desuetude is often a precursor of reform.”

But O’Malley’s statement misses the point for the thousands of people each year who have been charged or convicted as criminals in Maryland for having small amounts of marijuana. The nearly 20,000 small-amount pot violations entered into Maryland court records in fiscal year 2013—almost 3,100 of which resulted in criminal fines or time behind bars for those charged, according to figures provided by Maryland courts to the legislature during this year’s debate—point to the potentially dramatic impact decriminalization can have on many Marylanders’ lives.

Data on pot arrests in Baltimore City are glumly relevant on this score. In all of 2013, Baltimore City police conducted 3,620 arrests for possessing less than 10 grams of weed. The average age of those arrested was 28 years old, and 92 percent were African-American. In the first three months of 2014, there were another 699 arrests; 90 percent of those arrested were African-American and, again, the average age was 28. Thus, every month, hundreds of young African-Americans in Baltimore City are locked up for having a little bit of weed in their pockets, arrests that will show up in their criminal records all their lives. Starting in October, that will come to an end.

Baltimore Mayor Stephanie Rawlings-Blake, who opposed the decriminalization bill, now says she finds solace in the measure’s potential to reduce arrests. “The racial disparities in arrests for marijuana possession is [sic] appalling,” Rawlings-Blake says in a statement to City Paper. “Now that decriminalization is the law, my administration will fully support implementation,” she adds, “and I hope that it leads to a decrease in arrests for African Americans.”

Obviously, then, the big winners in this picture are the Free State’s many dope smokers, since an avenue to avoid criminal charges is opening up. Navigating that avenue, though, may prove more complicated than it first appears, so risk-averse tokers should proceed with caution.

Consider, for instance, where the 10-gram threshold falls in the typical small-time pot-buying scenario. Your friendly neighborhood dealer typically sells in fractions-of-an-ounce increments. If you’re caught holding an eighth-ounce bag, which weighs about 3.5 grams, or a quarter-ounce bag, you’re just facing a civil fine. If you’re a first-time offender who is 21 or older, you’ll be on the hook for $100, and second and third offenses will up the ante to $250 and $500, respectively, while drug treatment may be ordered if you’re under 21 or a third-timer. But if you buy a half-ounce bag, which weighs more than the 10-gram threshold, and a cop catches you with it, you’re looking at the same old misdemeanor criminal charge, carrying maximum penalties of a year in jail and a $1,000 fine.

Consumer-oriented dealers, then, might consider selling in 9.5-gram intervals, just to keep their customers on the safe side of the law. There could even be a new term for this, something like a “fine bag,” meaning it’s pretty much fine to carry it around with you, or that you just get a fine.

But there’s another wrinkle to consider: Devices used to smoke pot—even rolling papers, if they’re used to roll joints—are still outlawed, and those caught with them catch a criminal charge carrying a maximum $500 fine but no jail time for first-time offenders. Perhaps, then, you could chuck your bong, bowl, or vaporizer, and head to the kitchen to cook small batches of pot cookies or brownies instead (see “Getting Baked,” page 41), so as not to bear the risk of carrying any paraphernalia. But this approach is fraught too: If a cop catches you with the cookies, and detects they have THC in them, can’t you be charged based on the weight of the cookies? Probably. So even a single cookie or brownie—unless it is under 10 grams, which would be a very, very small confection—could land you in lockup.

Thus, despite decriminalization, it will continue to be hard to use pot in Maryland without risking criminal charges. But tokers are still the big winners, since far fewer of them are likely to get arrested or otherwise end up with criminal records in the future.

Besides dope smokers, the other decriminalization winners are the players in the state’s criminal justice system, which will see resources freed up to manage more pressing concerns. As the fiscal analysis of the bill puts it, “workloads for local law enforcement agencies may decrease to the extent that the citation process involves less administrative time than an arrest.” By extension, the same holds true for prosecutors and judges, who won’t have to adjudicate such cases, while decriminalization “significantly decreases caseloads” for the Maryland Office of the Public Defender (OPD), the analysis explains, allowing “resources spent on these cases” to be “shifted to other OPD cases and duties.” Local jails, meanwhile, won’t be detaining small-time pot possessors, saving $60 to $160 per day for each such inmate not serving time, the analysis notes.

Also in the winner category is the Maryland Department of Health and Mental Hygiene, which will become the recipient of the revenue derived from pot fines in order to underwrite drug-treatment and education programs. With a new money spigot, though, can come new headaches. As the analysis states: “[I]t is unclear what would happen to any unexpended funds at the end of a fiscal year.”

The reform, similar to those in place in at least 15 other states, passed in dramatic fashion in the final days of the Maryland General Assembly’s session and was an impressive affront to the remarkable institutional deference usually afforded to one powerful man: the House Judiciary Committee’s chairman for more than 20 years, Prince George’s and Calvert counties state Del. Joseph Vallario (D), a 77-year-old criminal-defense attorney and a staunch opponent of decriminalizing pot.

As the end of the session neared, Vallario’s committee amended the bill to relegate the prospect of decriminalization to two years of study by a task force. A revolt ensued, spearheaded by members of the Legislative Black Caucus. They stressed the thousands of new criminal cases that would be filed against Maryland citizens during two years of task-force navel-gazing, a disproportionate number of which would name African-Americans as defendants. Amazingly, the revolt succeeded.

In a fit of rhetorical cynicism, one could make the case that Vallario’s opposition to decriminalization is subliminal allegiance to the revenues he and his colleagues at the bar derive from those charged in small-time pot cases. A review of the state’s online court records reveals that in the past three years, Vallario has had at least 36 such defendants—a fraction of his overall client base, but nothing to sneeze at, nonetheless, especially since their cases, which involved no other more serious charges such as pot-dealing or weapons, were likely pretty easy to resolve. That argument, though, is perhaps unfair—as a group, criminal-defense attorneys have been vocal supporters of decriminalization; there are plenty of other, more serious crimes that generate far greater fees.

So, if not criminal-defense attorneys, who loses? State Sen. Lisa Gladden (D-Baltimore City) has an interesting perspective on this question. She says that “ultimately, black kids are the ones who are going to be hurt” by decriminalization, because “police officers are going to shake them down, lock them up, and hold them for 10 hours in lockup before saying, ‘Oh, it’s not enough to charge you.’ I don’t have any faith in the State’s Attorney’s Office or the police department to make good decisions when they’re faced with a kid with some marijuana in his pocket.”

Gladden voted against the decriminalization bill when it was before the Senate Judiciary Committee, for which she serves as a vice chair, and either didn’t vote or voted against it in two Senate floor votes. Why? “I’m tired of taking half-steps. We’re not doing this right. I would rather make it legal and call it a day. We need to legalize it so we can get the cops out of the game completely.”

And that, of course, is the end game here. O’Malley said desuetude stirs the winds of reform. Perhaps, upon tasting the fruits of decriminalization, lawmakers will develop an appetite for legalization, with its tempting potential for tax revenue and free-falling costs for enforcement, prosecution, and incarceration. As Gladden points out, “it’s a money-maker.” At that point, perhaps, there will be no losers—except maybe your friendly neighborhood drug dealers.

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