With new law taking effect in October, little agreement on approach
By Doug Donovan, The Baltimore Sun
As prosecutors across Maryland wait for the new law that will remove criminal penalties for possessing small amounts of marijuana, they’re taking a patchwork approach in the way they handle such cases.
In some counties, including Harford and Carroll, state’s attorneys are taking a hard line, continuing to seek criminal convictions that carry the threat of jail time and fines for offenders. But in Baltimore County and some other localities, prosecutors have become more lenient, knowing that on Oct. 1 possession of small amounts of pot will trigger nothing more than a civil fine.
“It’s uncharted territory. We’re prosecuting offenses that are criminal now that won’t be in a few months,” said Queen Anne’s County prosecutor Lance Richardson. “It’s hard to wrap your head around that.”
Not so hard for defense attorneys.
“This is about to not be a crime, so why should they saddle anyone with a criminal conviction between now and then?” said Natalie Finegar, deputy public defender in Baltimore City.
The decriminalization law, passed by the 2014 General Assembly and signed by Gov. Martin O’Malley on April 14, was part of a broader legislative push to lighten penalties associated with marijuana use.
While current law calls for a maximum penalty of 90 days in jail or a $500 fine, the new statute classifies possession of 10 grams or less as a civil matter that will be punished by escalating fines from $100 for the first offense, $250 for a second infraction, and $500 for a third. Most important to advocates, offenders avoid criminal records.
The General Assembly also broadened the state’s medical marijuana laws, authorizing a network of growers and dispensers, and providing patients with access to the drug without fear of prosecution.
But the decriminalization law — pushed by the NAACP, ACLU and others who argued that current possession laws are unfairly applied — was more controversial. It was not approved by the legislature until the final day of the session.
When similar statutory changes were made in the states of Washington and Colorado, local prosecutors also were split. Those states legalized marijuana possession in November 2012, and though the new laws took effect in just a month, some prosecutors refused to halt criminal prosecutions in the interim.
“It split the district attorneys,” said Thomas Raynes, executive director of the Colorado District Attorneys’ Council. “In some ways, as a state, it was problematic not to have an approach on how to deal with the interim period.”
Agreeing to a uniform approach among Maryland’s 24 independent elected prosecutors appears unlikely before Oct. 1, according to interviews with nearly half of them.
But officials with the Maryland State’s Attorneys’ Association — which wanted O’Malley to veto the decriminalization law — said they are going to try.
“It would be negligent not to think about what we’re going to do in the interim,” said Montgomery County State’s Attorney John McCarthy, who is on the association’s board.”At the end of the day, whatever you do, it has to seem fair,” he added. “It can’t be wildly inconsistent with where the state is going.”
Baltimore County State’s Attorney Scott Shellenberger added, “We’re in a six-month middle ground — kind of a no-man’s land.”
Shellenberger typically offers first-time offenders caught with 10 grams or less of marijuana the chance to clear their criminal record quickly by accepting “diversion” into a drug counseling program. Repeat offenders do not get the same offer; nor do first-time offenders who decide to pursue their cases in front of a judge.
Shellenberger has altered his approach since O’Malley signed the law. Now, even first-time offenders who do not agree to drug counseling can get their records cleared after three years if they agree to perform 12 hours of community service.
Eric Mainville of Connecticut was the beneficiary of that new approach last week, six months after the construction worker was caught with a small amount of marijuana outside his Owings Mills hotel room.
The 47-year-old laborer drove eight hours to appear in District Court in Towson on Monday to accept a plea deal from one of Shellenberger’s prosecutors: 12 hours of community service in exchange for having the criminal charge cleared after three years.
In an interview, he expressed frustration that he had followed the no-smoking rules at the hotel, but ran afoul of the criminal law by smoking a joint in his car as he waited for a “Monday Night Football” telecast to start.
“To me it’s not criminal,” Mainville said. “I’m just six months behind the curve.”
Shellenberger said first-time defendants should not be treated differently if they violate the possession law now rather than in October. But, he added, repeat offenders of the existing criminal law will not be offered such leniency.
Harford County State’s Attorney Joseph Cassilly agrees.
“Let them take their 90 days,” Cassilly said, referring to the current maximum penalty for possessing 10 grams or less of marijuana. “I didn’t change this law. I don’t know why I’m expected to go out of my way to ignore the law [as it exists].”
Cassilly said he would be more aggressive diverting cases into drug counseling if he believed such programs were effective. But he disagrees with Shellenberger’s community service approach, saying offenders “don’t learn anything except how to pick up trash.”
Repeat offenders should be treated as criminals until the law changes, Cassilly said. “Second or third offenders: these are guys who decide to break the law.”
Gerard Martin, a private defense attorney from Baltimore, finds such attitudes distasteful.
“Any prosecutor who decides to keep prosecuting these cases in light of what the legislature has done, it’s mean-spirited and wrong,” Martin said.
Nearly all of the prosecutors interviewed by The Sun said first-time offenders should still be treated with “diversion” efforts. But few are willing to expand that option to repeat offenders, except Baltimore City State’s Attorney Gregg Bernstein.
His office steered nearly 4,500 people through its diversion program in 2013. Bernstein expects to expand that number to include all nonviolent repeat offenders before the new law takes effect, a spokesman said.
Baltimore City Public Defender Elizabeth Julian surveyed her staff last week and found that city prosecutors are continuing to pursue criminal charges for repeat offenders.
“It seems disingenuous to give out convictions, pursue cases to the maximum when it’s just a matter of months before the smoke clears,” Julian said. “Waiting for Oct. 1 to come can be damaging to many people.”
Maryland’s public defender, Paul DeWolfe, has instructed his counterparts across the state to avoid plea deals, request postponements and demand jury trials to help defendants avoid criminal convictions. “It makes no sense to pursue prosecutions as if the law isn’t going to change,” he said.
His own survey of public defenders from across Maryland finds that many prosecutors are dropping charges against repeat offenders, even in counties where state’s attorneys have expressed tough rhetoric, DeWolfe said.
In 2013, 21,008 people were charged in Maryland with possessing or using 10 grams or less of marijuana, according to data from the state judiciary. Of those, 2,542 were charged with just that sole offense and were convicted for it.
That’s a lot of careers that can be ruined, advocates say.
“The Maryland General Assembly has spoken and the vast majority of Marylanders agree that this should not be a crime,” said Sara Love, public policy director for the ACLU of Maryland. “Let’s not saddle Marylanders with criminal records.”
Ulysses Cofield can attest to the lasting damage that comes with such a marijuana charge. The 28-year-old from East Baltimore was volunteering at Fort Worthington Elementary School in 2010 when school district officials instructed principal Donald Presswood to remove him.
Presswood said he demanded to know why. Cofield was one of his best volunteers and he didn’t want to lose him. When the principal discovered the nature of the charge, he worked with Cofield to get his record expunged.
“Having a charge as petty as possession of marijuana, that really closes a lot of doors,” Cofield said. “Once you get that charge, you can’t work.”
The process took eight months. But once he was back volunteering, he devised an after-school program called Creating Opportunities for East Baltimore’s Youth to Take Root Through Community Engagement. The mentoring program caught the attention of Open Society Institute-Baltimore, a nonprofit that awarded him a fellowship in 2013 to support his work.
Cofield’s friend Hezekiah Prestige faced a similar challenge. The West Baltimore man was arrested in 2007 for possessing less than 10 grams of marijuana. He never attempted to get the conviction cleared from his record. So every time he applied for a job the conviction scuttled his chances.
“That record will kill you,” said Prestige, 33.
Starting a business was the only way he could find employment, he said. His company, Prestige Showcase, is a modeling and talent management agency that tries to help young people land gigs in music videos.
Dorchester County State’s Attorney William Jones said he will keep in mind such employment issues as he attempts to take a “softer approach” in marijuana cases before Oct. 1
“It’s a big deal for employment. I’m not looking to give someone a conviction now for something that they wouldn’t be convicted of after Oct. 1. That doesn’t seem fair,” Jones said. “We have a responsibility to change with the law as the law changes with society. We’ll try to implement the law as it is intended.”
Prosecutors willing to pursue more lenient punishments were clear that they are not asking police to do anything other than follow the existing law.
“Police just can’t ignore the law that’s on the books,” said Frederick County State’s Attorney Charles Smith. “We are going to continue as business as usual.”
Some prosecutors are waiting for the state association to devise a strategy or are still formulating their own. Prince George’s County State’s Attorney Angela Alsobrooks has formed a committee to develop a process.
A spokeswoman for Anne Arundel County State’s Attorney Anne Colt Leitess said that in simple possession cases people with no criminal record will continue to be offered diversion.
Carroll County prosecutors are not wavering.
“We vigorously prosecute drug cases. We’re treating the cases the same pending Oct. 1,” said Edward Coyne, a Carroll County narcotics prosecutor and spokesman for State’s Attorney Jerry Barnes. “It’s still illegal to have marijuana for use.”
Judges may have something to say about that.
Montgomery County Chief of Police Thomas Manger said some judges in his county are taking it upon themselves to impose punishments more in line with the new law. One judge, he said, chose not to impose the current $500 fine for criminal possession and ordered payment of $100, the civil penalty that first-time offenders will face come Oct. 1.
Harford County judges are making similar moves, Cassilly said. “I have judges that want to act like defense attorneys” by arguing for more lenient sentences, he said.
In the meantime, prosecutors will continue to debate various approaches to pot cases.
Howard County State’s Attorney Dario Broccolino said those approaches were evident at a meeting of the state’s attorneys’ association, in the days before O’Malley signed the law.
Someone at the meeting asked when prosecutors should “stop enforcing the law as it exists now,” Broccolino said.
“On the 30th of September, some said. Others said, ‘That doesn’t seem fair,'” he recalled. “Is it fair for me to say I’m going to enforce the law as it exists until Sept. 30 when [another] county is going to stop prosecuting them Sept. 1? I’m sure we’ll have a vigorous debate.”