This is turning into a very strange legislative session this year, particularly in the House of Delegates. Two years ago, the General Assembly passed a law decriminalizing possession of small amounts of marijuana (less than 10 grams, a little over a third of an ounce). Last year, the General Assembly also decriminalized possession of marijuana paraphernalia (rolling papers, bongs, and the like), and this year overrode Governor Larry Hogan’s veto of the paraphernalia bill.
Despite these clear and recent steps to keep Marylanders from being branded with a criminal record for possession of marijuana, this year the House of Delegates has reversed course, not once but twice.
First, the House passed HB777, which criminalizes the public consumption of marijuana, in direct contradiction to the establishment in the 2015 paraphernalia bill of a civil fine for such violation. By comparison, the maximum penalty for public consumption of alcohol is $100. For marijuana, the maximum fine is $500. Moreover, the definition of “public place” for purposes of marijuana is extraordinarily broad (see here), while that for alcohol consumption is much more restrictive (see here). As Delegate David Moon pointed out after the floor vote, the maximum penalty for smoking tobacco in an elevator is $25, and that too is a civil fine.
So first the General Assembly overrode a gubernatorial veto of a bill making public consumption of marijuana a civil fine, but then, in the same session, amends the new law to make the penalties criminal, in contradiction not only of the brand new law, but also of the 2014 decriminalization bill.
Curiously, all but two of the sponsors of HB777 are Republicans, yet the bill passed the Judiciary Committee 12-8 with the votes of four Democrats (Delegates Sydnor, Atterbeary, Anderson and Conaway). On the floor, the vote was a lopsided 102-34. Half the “no” votes came from Montgomery County, whose delegation voted 17-5 against the bill.
As bad as HB777 is, I submit that HB565 is worse. Although it purports to assess a civil fine for possession of fewer than 10 grams of marijuana, that’s not what the language of the statute says. Where the law (passed just two years ago) previously stated that a “violation of this section” will subject the violator to fines, the new language states that “a finding of guilt under this section . . . is a civil offense.” This quite frankly is nonsensical, as “guilt” in the law – particularly in a section of the criminal law code – is a notion that is exclusively connected to a criminal offense. A civil infraction does not involve the concept of guilt at all, but instead involves a violation or a finding of liability (such as in a car accident case; a defendant is “found liable,” not “found guilty.” So what in the world is a quintessentially criminal law concept doing in a statute that purports to be about a civil offense?
As if this isn’t bad enough, the statute also adopts without any apparent irony another inherently criminal law concept – “probation before judgment.”
(6) THE DEFENDANT MAY ENTER A PLEA OF GUILTY OR NOT GUILTY, AND THE VERDICT OF THE COURT IN THE CASE SHALL BE:
(I) GUILTY OF A CODE VIOLATION;
(II) NOT GUILTY OF A CODE VIOLATION; OR
(III) PROBATION BEFORE JUDGMENT, IMPOSED BY THE COURT IN THE SAME MANNER AND TO THE SAME EXTENT AS IS ALLOWED BY LAW IN THE TRIAL OF A CRIMINAL CASE.
So it’s a civil offense, but the court finds a defendant guilty or not guilty, which only relates to criminal law cases, or alternatively can place her on probation before judgment, which once again, is a purely criminal law concept. Got all that?
And in a perfectly inane wrap up to the statute, these allegedly civil offenses are to be prosecuted by the State’s Attorney in each county, who only prosecute criminal offenses, and the prosecutor may place the matter on the “stet docket” (an indefinite postponement) or may enter a “nolle prosequi” (a dismissal of the case), both of which are, yet again, ENTIRELY CRIMINAL LAW TERMS.
And despite using entirely criminal law terms throughout the entire bill, it also purports to establish a lower threshold of evidence – preponderance of the evidence – than the usual criminal law standard of “beyond a reasonable doubt.”
And – sorry, I keep finding more nonsense as I read it through again – despite this being purportedly a civil offense despite all the criminal law nomenclature, the bill purports to protect the findings from public inspection, which should only be necessary if the proceedings are in fact criminal. Which they aren’t, except for all the terminology to the contrary.
I don’t know about you, but my head hurts. This bill is – to use a technical term here – a freaking mess. Whoever drafted this statute really needs a remedial primer on criminal law terminology. It’s embarrassing at best, potentially catastrophic at worst. And it appears to be a solution in search of a problem that doesn’t exist.
None of the above discussion is set forth anywhere in the fiscal note, nor was it to my knowledge even recognized during the House hearings (this is one of those times when the absence of anyone who’s actually spent time in a criminal courtroom is glaring). As a result, a bill has been passed that creates the real possibility of undoing the entire 2014 decriminalization process – and nobody seems to have noticed.
Why is this happening? No idea. But the fact that two bills got out of the House before crossover that so flatly contradict one of the General Assembly’s most significant accomplishments of the past several years – with hardly any fanfare or even notice – is very problematic.
Here’s hoping the Senate kills both these bills, swiftly and mercilessly.