We have previously covered on the blog the implications of Massachusetts initiatives regarding marijuana and the interaction between Federal and state drug laws. In 2008, voters decriminalized the possession of an ounce of marijuana under state law. In 2013, voters set up a system for the medical use of marijuana in Massachusetts. Possession, distribution, or use of marijuana in any form remains illegal under Federal law, and the Federal Drug Enforcement Administration recently reaffirmed the placement of marijuana on Schedule I, meaning that it has “no currently accepted medical use,” a “high potential for abuse,” and a “lack of accepted safety for [its] use.” However, in 2014 Congress enacted into law an Obama administration policy permitting states to implement medical marijuana laws, giving a subtle positive signal at least for medicinal use of marijuana.
This week, Massachusetts voters again gave the green light to marijuana reform in the form of Question 4. Question 4 is long and complex, but we can summarize some of its most important provisions. Under Question 4, starting on December 15, 2016, it will no longer be illegal under Massachusetts state law for anyone 21 years old or older to possess an ounce or less of marijuana, or up to 5 grams of marijuana concentrate. Within one’s own home, an adult over 21 is permitted to possess up to 10 ounces of marijuana, grow up to 6 marijuana plants (up to a total of 12 plants at a time for two or more people), and possess any marijuana grown on the premises. Individuals committing these acts are protected against any criminal or civil penalties under state law; by contrast under current state law possession of marijuana without appropriate medical documentation is at least a civil infraction with a $100 fine, and cultivation or possession of more than an ounce is criminal.
These reforms are not unlimited. It is still a criminal offense, for the time being, to sell marijuana (except for medical dispensaries under the medical marijuana law); it will remain a crime to drive or to operate a boat or other vehicle under the influence of marijuana; and it will be a civil infraction to use marijuana in public. The state is supposed to roll out a regulatory scheme run by a Cannabis Control Commission in 2017, start accepting applications for marijuana sellers by October 2017, and start permitting licensed sales by January 1, 2018, on which a 3.75% tax would be imposed. Cities and towns will have some authority to permit or restrict marijuana use or sale in certain areas, and to place an additional local sales tax on marijuana transactions.
One interesting provision of Question 4 explicitly permits “giving away or otherwise transferring without remuneration up to 1 ounce of marijuana, except that not more than 5 grams of marijuana may be in the form of marijuana concentrate, to a person 21 years of age or older, as long as the transfer is not advertised or promoted to the public.” In other words, while selling marijuana outside the licensing scheme will still be a crime, sharing or giving marijuana away for free will not. That is a significant change in the law because the Supreme Judicial Court held in the 2012 case of Commonwealth v. Keefner that the felony offense of distributing marijuana applied even to non-criminal amounts of marijuana and even when no money changed hands, although it later clarified that sharing marijuana socially does not qualify as “distribution.” Whereas prosecutors commonly charge individuals with possession of marijuana with intent to distribute based on the amount of marijuana in their possession, how it is packaged, and other factors, it may now become a defense to such a charge that the defendant intended to give the marijuana away rather than sell it.
Question 4 is complex and much remains to be decided by state agencies, the courts, and perhaps legislators (who, while accepting the voters’ will, have suggested that they may try to “improve” or tweak the details), but the implications for marijuana use and prosecutions will likely be far-reaching. Of course, one major unknown will be the new Federal Administration’s policy towards recreational marijuana use. The Obama Administration has largely watched warily in states like Colorado and Washington, but the addition of several new states like Massachusetts and especially California, coupled with the change in power in the White House, leaves a lot of uncertainty as to whether Federal authorities will fire up more active enforcement of Federal criminal drug laws in states that have legalized marijuana.