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.