Drug law puzzles police

Many questions on enforcement of new marijuana rules

Prosecutors and police officers say they still have fundamental questions about how to enforce the new law that takes effect Jan. 2 decriminalizing possession of small amounts of marijuana.

Many law enforcement officials strongly opposed the intensely debated Nov. 4 state ballot question that will turn possession of an ounce or less of marijuana into an offense on par with a traffic violation. Police and prosecutors say they are in the dark about many aspects of the law.

A high-ranking state judge sought to clarify some matters in a memorandum issued yesterday. But police and prosecutors said questions still abound, including what they should do with people caught with several joints who refuse to identify themselves, who will develop and fund a drug-awareness program required for violators under 18, and whether state-run laboratories that test drugs seized in criminal cases will continue to do so for small quantities of marijuana.

"I think there are a lot more questions than answers right now," Lawrence Police Chief John J. Romero said of the law. "I don't think anybody knows how this is going to play out."

Berkshire District Attorney David F. Capeless, president of the Massachusetts District Attorneys Association, said state officials have yet to address other unexpected questions, including whether police chiefs can discipline officers who light up a joint after work.

"I'm not suggesting that officers are doing it," he said. "But what you're doing, whether it's officers or other public employees - transportation workers, bus drivers, teachers - you're removing a disincentive by saying: 'We won't be able to do anything to you. You won't get disciplined for this. It won't mean your job. It may mean a $100 fine.' "

In a letter last month on behalf of the district attorneys, Capeless urged Governor Deval Patrick to ask the Legislature to delay the effective date of the new law. But a spokesman for the state's Executive Office of Public Safety and Security said yesterday that Patrick will not do that, even though the governor opposed the ballot question.

Terrel Harris - a spokesman for the Office of Public Safety, which is responsible for setting up the new system of civil penalties - acknowledged that time is running out until the law goes into effect and said the office will issue its own guidelines for law enforcement officials next week.

"We are looking at this issue from every conceivable angle," he said. "We realize that the deadline is rapidly approaching, but we want to get it right."

Thomas W. Nolan, an assistant professor of criminal justice at Boston University and a former Boston police lieutenant who was featured in a television ad supporting Question 2, characterized the complaints of law enforcement officials as inflexibility.

"Police organizations are somewhat monolithic, in that they are resistant to change by nature," he said. "So there's going to be some hand-wringing for sure. But voters have spoken, and they're going to have to craft a way to see this implemented."

Under the ballot measure, which won the approval of about 65 percent of state voters, people caught with an ounce or less of marijuana would be subject to a $100 civil fine. Offenders under 18 would also be required to attend a drug-awareness class within a year. The fine increases to $1,000 for those who skip the class.

Massachusetts became the 13th state to decriminalize quantities of marijuana.

Proponents of the change - including activist groups such as the Committee for Sensible Marijuana Policy and the billionaire financier George Soros, who spent more than $400,000 in favor of decriminalizing marijuana - said it would ensure that those caught with small quantities would avoid the taint of a criminal record.

The Massachusetts Chiefs of Police Association, the Massachusetts Association of District Attorneys, Attorney General Martha Coakley, and Patrick all opposed Question 2, saying it would send the wrong message, create a bureaucratic nightmare, and probably mean de facto legalization of small amounts of marijuana.

Yesterday, Lynda M. Connolly, chief justice of the state district courts, issued an eight-page memorandum that addressed some questions raised by prosecutors and police chiefs, such as who is responsible for producing books of citations that officers will hand out to offenders. (The memorandum indicates that each police department, as well as the State Police, must print its own books.)

But the document acknowledged that some aspects of the law are unclear, such as what recourse police departments have if a violator fails to pay a civil fine or if a violator under 18 fails to file a certificate showing that he or she completed a drug-awareness program or fails to pay the resulting $1,000 fine.

The memorandum also said there is uncertainty whether a district court judge can summarily revoke the probation of a convicted offender on the basis of a citation for possessing less than an ounce of marijuana.

Capeless said law enforcement officials have other pressing questions.

They wonder, for example, whether two laboratories that test drugs seized by police, one run by the Department of Public Health and another by the State Police, will continue doing so for small quantities of marijuana in civil cases. The labs are already backlogged and understaffed, he said, and law enforcement officials are concerned that they will stop testing small quantities in cases where alleged violators deny that the substance is marijuana.

Harris, the spokesman for the state public safety office, said, "No final decisions have been made about anything dealing with testing or weighing of whatever contraband is confiscated."

Cape and Islands District Attorney Michael O'Keefe said law enforcement officials also still do not know how they will respond if people caught with a few joints refuse to identify themselves.

Currently, Massachusetts residents are not required to carry identification unless engaged in specific acts, such as driving. As a result, Suffolk District Attorney Daniel F. Conley had predicted that police will be handing out citations to violators who call themselves Mickey Mouse.

O'Keefe said he believes that proponents of decriminalization cannily crafted a ballot measure with numerous loopholes in hope that it would be impossible to implement and quickly lead to de facto legalization.

"They sold the public a pig in a poke, and the public bought it," he said.

But Nolan, the Boston University professor who supported decriminalization, disagreed.

"The nuts and bolts of the implementation of this new law will be worked out incrementally as it's rolled out," he said, "and if there are obstacles, there's nothing to preclude the state Legislature from fixing it. That's what we pay state legislators to do."

Michael Levenson and Shelley Murphy of the Globe staff contributed to this report.