Marijuana decriminalization: Proceed with caution

State's attorney Bernstein warns of unintended consequences if possessing pot is legal but selling it is not

June 20, 2013|By Gregg L. Bernstein

A recent ACLU study that found disparate enforcement of marijuana laws in Maryland and throughout the nation raises important and difficult questions about how we use our resources to combat crime, generally, and the possession and sale of marijuana, specifically. The report, and The Sun's editorial in response, also highlight the disproportionate impact that criminal enforcement of marijuana laws can, and does, have on minorities.

As this newspaper and other media outlets have reported, I strongly support measures that keep nonviolent offenders charged with possession of marijuana not only out of prison but also out of the court system and free from the burden of a criminal record, which can severely restrict educational and employment opportunities in an already difficult economic climate. My top priority as state's attorney is to reduce violence in our city. By shifting more of our resources from marijuana cases to those involving violent felonies, we are better positioned to build on the progress we already have made. Here's what we are doing.

Since I took office, we have doubled participation in our marijuana diversion program, which enables people with no history of violence to avoid prosecution in favor of education, counseling and community service, and hopefully refrain from consuming illegal drugs. Last year, more than 1,400 people took part in our diversion program. Also, in 2011, along with members of the General Assembly, I worked to pass a law that reduced the maximum penalty for possession of small amounts of marijuana from one year to 90 days. These initiatives reduce the arrest, prosecution and detention of individuals who possess marijuana, and allow the limited resources of our criminal justice system to be better used for offenders who commit acts of violence and threaten the safety of our neighborhoods.

Before we go further and consider decriminalization or legalization of marijuana, we need to pay careful attention to the possible unintended consequences. For example, those who may consider marijuana to be a less dangerous or "softer" drug compared to cocaine and heroin as a basis for decriminalizing or legalizing simple possession need to understand that either decriminalization or legalization of possession does not necessarily address distribution and the violence associated with the sale of marijuana as rival gangs compete for turf, which has a destructive impact on our city's residents and neighborhoods. To understand the motive for this violence, one need look no further than the money to be made. According to one estimate, marijuana sales would generate annual revenue of $120 billion per year if legalized, making it larger than the U.S. market for beer.

A move toward either decriminalization or legalization would also have implications for police enforcement efforts and public safety. Searches based on the possession of marijuana sometimes yield firearms and other contraband. Vermont's recent law decriminalizes the possession of one ounce or less of marijuana, but the drug is still considered contraband, which allows police officers to conduct searches based upon probable cause.

Other law enforcement-related questions include consideration of the rules governing public consumption and driving while smoking marijuana, and how officers would be trained and equipped to determine when a driver is under the influence of marijuana. How about the potential adverse health effects and corresponding societal and personal costs of increased marijuana use?

Although this incomplete list of questions is long, we must invest the time and energy to devise answers before making a decision about whether to change the laws governing the sale or possession of marijuana. There is a very real risk that if we are not thorough and methodical in our approach to confronting this important issue, we will wake up one day and wonder how a seemingly simple decision spawned a number of unanticipated challenges and problems. In this regard, we would be wise to study the effect of recent laws legalizing recreational use of marijuana in Colorado and Washington state as a guide for potential changes in Maryland's current laws regarding the drug, particularly given the current conflict such a law would have with the federal government's continued nationwide prohibition on use and possession.

Concerns about over-incarceration and the disparate treatment of minorities in drug arrests and enforcement are legitimate. As I have demonstrated, I am willing to innovate and take new approaches to solve problems to make our city safer — but not without doing my homework. I urge our legislators to carefully consider how to balance the public policy concerns of both our current marijuana laws and future laws, and I welcome the opportunity to bring public safety and public health experts together to explore legislative solutions to these issues.

Gregg L. Bernstein is the state's attorney for Baltimore City. He can be reached at

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