At Hearing, Maryland Law Enforcement Divided On Decriminalization Threshold Increase

A hearing last week for House Bill 550 brought out police and prosecutors for and against the bill, which would increase the decriminalization threshold for cannabis and prevent possession of an ounce as the sole reason to charge someone with intent to distribute.

While statements from HB 550 sponsor Delegate Nick Mosby and representatives from American Civil Liberties Union (ACLU), Marijuana Policy Project (MPP), and the National Organization For Reforming Marijuana Laws (NORML) all stressed lives ruined by cannabis charges, the appearance of prosecutors and state police on both sides of the bill offered vastly different visions of Maryland amid decriminalization.

Jeneffer Haslam, of the Baltimore State’s Attorney’s Office (whose current policy is not charging anybody with possession regardless of the amount) reiterated important talking points when it comes to how increasing the decriminalization threshold will begin to address racially disproportionate arrests, charges, and convictions when it comes to cannabis.

“Maryland residents, especially black Maryland residents are more likely to be charged, prosecuted, and punished more harshly for drug-related offenses. These state residents are more likely to face difficulty to overcome collateral consequences including accessing social services, finding jobs, education, adoption, and more,” Haslam said. “The reality that these penalties are enforced in a racially disparate manner and carry lifelong consequences illustrate the need for change in Maryland is urgent, and House Bill 550 would start this change.”

Neill Franklin, a retired major for the Maryland State Police and now executive director of the Law Enforcement Action Plan (L.E.A.P.), which supports drug legalization, discussed the ways in which police work around the 10-gram threshold to make arrests.

“When we decriminalized 10 grams or less of marijuana here in Maryland, I thought that was going to solve a lot as relates to possession arrests as well as possession with intent to distribute,” Franklin said. “The public defender’s office has reached out to me on many occasions to help them with cases. In one particular jurisdiction, there were cases where individuals are being charged with possession with intent to distribute for less than 10 grams of marijuana.”

Franklin’s comments reflect what The Outlaw Report has heard: Police officers and prosecutors playing fast and loose with the law and often charging people with intent to distribute for having a few small bags of cannabis. Since decriminalization has taken effect, intent to distribute charges have actually increased in parts of Maryland. According to ACLU MD, In Montgomery County there were 328 arrests for distribution in 2015 compared to just 83 in 2014.

Law enforcement opposing the bill meanwhile, ignored the effects of a cannabis arrest, got deep into the weeds about intent to distribute, suggested legal cannabis was destroying the moral fabric of the country, and refused to comment on racially disproportionate arrests at all.

Joe Riley, State’s Attorney for Caroline County, focused on the possession with intent to distribute part of the bill and noted that once cannabis becomes illegal, that still does not mean that the “street sale of marijuana” would be legal. HB 550 would “make it almost impossible to stop [street sale] when it becomes a legalized thing because we won’t even be able to arrest an individual,” Riley said. 

Generally, law enforcement in states where legalization exists have not focused on the rare few dealing outside of the legalized industry.

Riley also challenged the claim that distribution charges result from simply having a couple of bags: “I don’t know of any jury that convicts for marijuana distribution solely because you possess two bags,” he said.

Riley’s argument, though, did not reckon with the reality that an arrest alone or the charge can be harmful to a person for decades after, even without a conviction for cannabis.

Steve Kroll, executive director of the Maryland State’s Attorneys’ Association, mentioned that “there’s a 9% addictive rate among those who use marijuana,” which got some chuckles from others in the room. He stressed to the committee that his office is not charging people with only a few small bags of cannabis, challenging Franklin’s assertion.

“We do not charge people unless there is some indicia of distribution,” Kroll said. “One bag? Two bags? We do not charge.”

But whether or not prosecutors are charging people for distribution, police are sometimes arresting people for intent to distribute, and those charges are reduced or dropped later on which still puts people in touch with the system.

Then there was Mike Lewis, sheriff of Wicomico County State Police. You may remember Lewis for announcing he would not comply with any new laws that, in his eyes, compromised the Second Amendment. He can be seen here thanking President Donald Trump for addressing “the dire crisis at the American border.” 

Lewis began by painting an image of a post-legalization United States that is out of control.

“Since the decriminalization and legalization of marijuana across the country, Americans of every color, gender, age, education level, or location anywhere in this country, not just the state of Maryland have had an awakening,” Lewis said. “Lives have been altered, relationships destroyed, and it appears it’s only getting worse.”

He did not expound on this comment. Instead he moved on to claiming that most people buying an ounce of cannabis are buying it “to break down and sell” and added that decriminalization has already “created confusion.” He mentioned a traffic stop on US-13 recently where he stopped a car going 81 miles per hour. The two teenage girls inside, he said, were smoking a joint, and they had an infant in the car with them. “Sir, it’s legal now. That passed years ago. You don’t know what you’re talking about,” Lewis claimed one of the teenage girls said to him.

How increasing the threshold—or the opposite, reverting back to criminal charges for cannabis—would make things less confusing was unclear. Next, he mentioned a case in Salisbury, Maryland where a man shot and killed his mother on Christmas day. This man, Lewis said, was found not criminally responsible due to “cannabis-induced psychosis.” The implication, presumably, is that now people will start invoking cannabis use to justify murders.

Lastly, Lewis mentioned a fatal shooting he was involved in that began with the arrest of a man for having seven grams of cannabis, an attempt at dismissing claims that people carrying small amounts of cannabis are not dealers and moreover, that they are not dangerous.

“I had a personal encounter that I got into that I think about every day of my life,” Lewis said. “I got into a physical altercation with a young man on a traffic stop, on the roadside, because he had seven, one-gram-sized baggies of marijuana in his pocket commingled with $3,131. He was a dealer, and when I went to take him into custody just for seven grams of marijuana—seven one-gram-sized baggies of weed; yes, he was a distributor—we fought for what seemed like an eternity on the roadside for control of my weapon before I finally had to shoot and kill that young man.”

When it was time for questions, Delegate Debra Davis pushed Riley, Kroll, and Lewis to comment on the vast amount of data provided during the hearing by Del. Mosby and others about racial disparity in cannabis arrests.

“You’ve heard the statistics regarding disproportionate policing, disproportionate arrests, the overcrowdedness of jails,” Davis said. “Do any of you want to speak to the institutional racism—how the current practices contribute to that process?”

Only Riley answered. 

“I’m here to testify on this bill,” he said.

“Ok, thank you,” Davis said. “That’s what I thought.”

Delegate David Moon, who is part of the Marijuana Legalization Workgroup and is the sponsor of HB 83—the “automatic expungement” bill—sought some clarification. The histrionics of the three had moved the conversation all around about what possessing over 10 grams could mean. Moon mentioned the thousands of people who are arrested for possession of more than 10 grams each year, which is who this bill would first and foremost benefit.

“There are people who are not dealers, who are in possession of marijuana, who are getting charged with a crime in Maryland?” Moon asked.

Riley, Kroll, and Lewis all answered as if the question were too obvious—“yes,” they all said at the same time.

“That’s the debate. That’s what we’re trying to change,” Moon said. “You’re also admitting here that these charges are not just for dealers, that they are for people, some people who are simply in possession of this amount. So you know, I think we might just agree to disagree on whether that’s good or not, but there seems to be confusion because you’re talking about people you’re charging with evidence they’re dealing but in fact these numbers are indicating there are probably thousands of people who are not dealers who are getting criminalized right now.”

Image shows Riley, Kroll, and Lewis from HB 550 hearing.

At Hearing, Maryland Law Enforcement Divided On Decriminalization Threshold Increase

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