California’s Prop 19 and Marijuana Law for Marylanders

Tomorrow (November 2, 2010) California voters will vote on the proposed Regulate, Control and Tax Cannabis Act of 2010 which, if passed, will allow the possession and cultivation of small amounts of marijuana and the taxed sale of small amounts of marijuana through licensed dispensaries to persons over 21 years of age.

Maryland, of course, is not part of California – a fact easily confirmable by any Marylander and most non-marijuana intoxicated Californians. While we are a sapphire-blue state politically, we have been mildly reluctant to adopt the cultural trends of the other liberal coastal states. Marijuana remains illegal in Maryland no matter what happens in California, though bona fide medical use cannot result in judicially imposed imprisonment under the medical marijuana mitigation statute signed by Governor Ehrlich. Possession of Marijuana under Maryland law is still a crime and will continue to be one, even if it’s not the state’s highest criminal justice priority.

It is possible, however, that the legalization of marijuana (if it happens) in CA may influence some decision making here in Maryland by some judges who may grow increasingly skeptical of the criminal justice approach to marijuana. It’s true that judges must enforce the law, and the whole law. However, the “whole law” includes the discretion that judges must exercise in sentencing, the options for probation before judgment, the terms of probation and the severity of probation. My suspicion is that marijuana will in Maryland’s metropolitan core become a “pay a meaningful fine and get lost” type of charge, with PBJ granted increasingly liberally and with a lower emphasis on the sorts of “throw the pothead down the well” dispositions infamous in other states.

I do not smoke marijuana; I also don’t sky dive, work in a mine or drink vodka, which unlike marijuana are legal for most adults in Maryland though regulated as to time, place and manner and are also potentially dangerous. If marijuana ultimately becomes legalized and regulated, I will still favor laws against second-hand smoke on the street, smoking in multi-unit dwellings, driving under the influence of marijuana (the codification of which is an interesting question under Maryland Transportation article 21-902(c) or (d) – if it’s legalized, is it still a controlled dangerous substance?) and similar laws. The right of non-consumers of marijuana to be free of any of its undesired effects must remain enforced fully by law. But I hope that casual use and casual cultivation of marijuana will not forever be a criminal justice boondoggle, a grandstanding opportunity for ambitious prosecutors hungry for a Congressional seat, a courtroom clogger and yes a revenue stream for us defense lawyers providing professional services for hire.

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