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Fixing Md.'s marijuana law [Editorial]

Maryland's legislature decided to decriminalize possession of small amounts of marijuana for a few reasons. Lawmakers concluded that police and prosecutors should not be focusing their attention on what is increasingly viewed by the public as a relatively harmless vice; they expressed concern that criminal convictions related to marijuana possession were harming the employment and educational prospects of thousands of Marylanders; and they were alarmed at the massive racial disparities in marijuana possession arrests between blacks and whites despite equivalent rates of use.

Although the new law only went into effect on Wednesday, it's already clear that it's going to take some more work to ensure that those policy goals are achieved uniformly throughout the state. As is common with major legislation, this one contains some ambiguities and omissions that will need to be addressed by the legislature, the courts or both.

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The first and most obvious thing the legislature needs to do is to address the incongruity that possession of less than 10 grams of marijuana is punishable by a civil citation and a fine (much like a traffic ticket), but possession of drug paraphernalia, including things like bongs, rolling papers and hookahs. It doesn't make a lot of sense that 9 grams of marijuana in a Baggie is a civil offense but a trace amount in a pipe is a criminal one, subject to a $500 fine for a first offense and up to two years in jail for subsequent violations.

Historically, paraphernalia violations have rarely been prosecuted as stand-alone offenses because the devices used for smoking marijuana can, generally, be used for legitimate purposes as well. A hookah can be used for smoking marijuana or tobacco, and a prosecutor would have a hard time making a case unless the police also found drugs. The trouble now is that a prosecutor and judge who disagree with the legislature's policy choice could use paraphernalia as a loophole to circumvent the new law. Theoretically, you could still get prosecuted for having a joint in your pocket, but now it would be the rolling paper, not the actual cannabis, that gets you in trouble. That should be fixed.

Another peculiarity of Maryland's law is that, unlike in Colorado, which legalized recreational use of marijuana this year, it is not actually illegal to smoke pot in public here. A bar or restaurant owner faces an escalating series of fines under the 2007 Clean Indoor Air Act for allowing patrons to smoke tobacco but no penalty at all for letting them smoke marijuana. You can now be fined $500 for smoking a tobacco pipe on a playground in Baltimore City, but it's not altogether clear that the law would apply to a marijuana bong. That should be fixed, too.

But several of the other possible problems critics of the law have pointed out merit a wait-and-see approach. The law contemplates an escalating series of fines for multiple citations, and ultimately a requirement that repeat offenders attend a drug education session. But since those caught with small amounts of marijuana aren't required to show ID, and police can't track offenses, there may be no meaningful way to enforce that. The trouble is, there may be no easy way to fix that without violating suspects' civil rights. It's also unclear how the legal change affects officers' ability to conduct searches when they observe or smell marijuana on someone's person or in a car. But that is a question of unsettled law nationally, not just in Maryland.

At a time when attitudes and laws regarding marijuana are in flux across the country, Maryland has exercised some prudent caution in liberalizing its laws; we have taken steps to alleviate some of the worst problems — including racially disparate arrests — related to current marijuana policy while letting other states discover the problems associated with outright legalization. When legislators return to Annapolis in January, they should fix some of the law's obvious flaws but otherwise wait to see how it works in practice.

To respond to this editorial, send an email to talkback@baltimoresun.com. Please include your name and contact information.

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