Feature: After Decriminalization Victory, Massachusetts Activists Fight Rear-Guard Action Against Recriminalizers

Massachusetts voters supported marijuana decriminalization by a margin of nearly two-to-one in November, despite the horrified protestations of the Bay State's law enforcement community. Now, thanks to the inclusion of a sentence in the ballot initiative and guidance from state Attorney General Martha Coakley, decriminalization foes see an opening to keep fighting their lost battle by seeking to pass municipal ordinances that would fine, or in some cases, subject to criminal penalties, people who consume marijuana in public.

Under the initiative passed in November and in effect since early this month, the maximum penalty for marijuana possession (up to one ounce) is a $100 fine. But as the state Executive Office of Public Safety and Security noted in law enforcement guidelines issued earlier this month: "Question 2 permits the cities and towns to pass ordinances or by-laws prohibiting public use of marijuana or THC and to provide for additional penalties for public use. EOPSS recommends that municipalities enact such by-laws or ordinances and provide police with the option of treating public use as a misdemeanor offense. "

Attorney General Coakley was happy to help out. Her office drafted and distributed a model ordinance for banning the public use of marijuana, which could include either criminal or civil sanctions, or both. A number of Massachusetts towns and cities have expressed interest in passing such ordinances, which does not sit well with decriminalization advocates, and now battles over the ordinances are breaking out all across the state.

It hasn't gone as well for the recriminalizers as they might have expected. The first municipality to vote on an ordinance, Worchester, voted it down last week. West Newbury Police Chief Lisa Holmes asked for a public pot smoking ordinance, but the council there unanimously said no. In Methuen and Quincy, Bay State activists have managed to put local elected officials on alert that they can expect trouble if they pass such ordinances.

But those battles aren't over yet, and there are many more to be fought. In Framingham, the town board of health passed a measure amending the smoking ban to include marijuana, but state law already prohibits the lighting of tobacco or other combustible products in public buildings. In Braintree, an ordinance proposing a $500 fine for public consumption will be discussed in coming weeks. In Auburn, where the police chief said the decriminalization law was unenforceable, he is expected to draft an ordinance fining public smokers. Ordinance fights will also take place in Danvers, Everett, Haverhill, Melrose, Milford, Newburyport, North Andover, Plymouth, Revere, Wakefield, and Watertown, according to Massachusetts activists. And there are probably more to come -- or perhaps not, if a string of defeats occurs.

And if activists can mobilize in those towns like they did Tuesday night in Quincy, they might just have the recriminalizers on the run. In Quincy, more than 60 people showed up outside city hall with signs and banners to express opposition to any ordinance. Mobilized by cell phone, Facebook, MySpace, and the BostonFreedomRally.com web site, about two-thirds of the ralliers were young people, said BostonFreedomRally.com's Scott Gacek.

"Many of our people had just voted for the first time, for Obama and for decriminalization, and now they feel like their votes are being ignored," said Gacek in explaining the youth turn-out. Although the ordinance was on the agenda, the city council dithered for hours over a zoning issue, but the crowd lingered into the night, sending the council a strong message of opposition.

"The council introduced the measure and, with no discussion whatsoever, voted to send it to the public safety and ordinance committees, but it doesn't exactly look like it's on a fast track," said Gacek.

Citizen action is a good thing, affirmed Bill Downing, president of the MassCann, the Bay State NORML affiliate. "If people want to participate in these protests in places like Quincy, that's a significant thing. If people are reading this in Maine or New Hampshire or Rhode Island, they can get on our e-mail list as well as read the news on the MassCann web site and join in. Please."

For Downing, the ordinance moves are a last gasp of the anti-decrim dinosaurs. "I see this as sour grapes by the folks who lost the vote," he said. "Hopefully, people throughout the state who voted for this would see actions like that as an insult, as they well should. It may end up helping us progress toward better marijuana laws because these people are only vilifying themselves."

"Attorney General Coakley was hostile toward us from the beginning, and after the election she sent out a model ordinance," said John Leonard, a former MassCann chair and currently a board member with the Drug Policy Forum of Massachusetts (DPFMA). "Now, they're jumping on this all over the place. We are in the process of formulating an action plan here at DPFMA," he said. "We're fighting these things left and right, and we need some help. We're happy that the Marijuana Policy Project came here and did the initiative, but now we're left with the aftermath."

MPP largely dictated November's initiative language and funded the campaign. Local activists had issues with some of the initiative's language, but papered over them to unite behind the campaign. In the sometimes rancorous debate in the run-up to the initiative, the language about ordinances was not an issue.

Perhaps it should have been, Leonard suggested in hindsight. "It is a shame that Question 2 allowed for public consumption laws," said Leonard. "Those are traditionally used for legal substances, like alcohol and tobacco. Marijuana is already illegal in public."

Downing also blamed the wording of Question 2 for some of the current problems. "The question itself said it didn't prevent towns from passing local ordinances. If they hadn't put that in there, this whole thing could have been avoided. Don't get me wrong," Downing continued. "We're thankful for MPP for all they did, but now we have to deal with this."

DPFMA is mobilizing to fend off the ordinances, Leonard said. "We are going to buy advertising in Quincy, which is the largest city where this is an issue, and we're going to be asking all the national organizations to chip in by adopting a town and lending their support. We want to stop this now," he said.

MPP is a bit more sanguine about the ordinances than Bay State activists. "The bottom line is really whether specific proposals are an attempt to subvert the intent of Question 2 or whether it is just a reasonable public nuisance ordinance," said MPP communications director Bruce Mirken. "If they are going to use this as a pretext to give people criminal records, then that becomes a problem." But it's Massachusetts voters who can stop the ordinances, or not, Mirken said. "It is up to local folks to decide what they're willing to tolerate and how organized they're going to get to stop something they don't like."

It's not that big a problem, said another national reform leader. "We're not worried that there will be serious damage from this," said Keith Stroup of national NORML. "It sounds like most of this is just chest-beating from the losers. They didn't like the initiative, so they run out and say 'in my town we're going to be tough,' but they are going to find that not many elected officials will want to go up against the expressed will of the voters."

"We want to make sure this law works well, and if it doesn't, we are going to need to work with people to fix it," said Stroup. "But we're not going back to arresting marijuana smokers. I think the people of Massachusetts appreciate their new law and having police pay more attention to serious crimes."

The ordinance battles will continue. At best, they will result in a resounding defeat of the recriminalizers. But even if decrim foes are able to get ordinances passed in some municipalities, it may be a pyrrhic victory: In the process of trying to do so, they are waking up a whole new generation of Bay State marijuana activists. Perhaps the local ordinance clause will turn out to be a Trojan Horse for building the drug policy reform movement.