Progress in Drug Policy

Progress in Drug Policy

A recent Court of Appeals decision threatening to require appointment of counsel at bail hearings before District Court commissioners spurred long-overdue reforms in drug laws. Chapter 352 of the Acts of 2012 allows probation before judgment for a second drug possession offense; a similar proposal by Delegate Curtis Anderson and others was vetoed by the Governor three years ago to the accompaniment of a totally unintelligible veto message. Chapter 505 of the Acts of 2012 greatly increases the number of offenses prosecution for which can be commenced by summons rather than arrest, including a newly created minor marijuana possession offense. Finally, Chapter 194 of the Acts of 2012 sponsored by the office of Baltimore City State’s Attorney Gregg Bernstein, creates a new offense, chargeable at the option of prosecutors, of possession of less than 10 grams of marijuana the penalties for which are not so high as to trigger prayers for jury trial. These measures in combination will allow diversion of minor drug offenders to treatment programs and avoid giving them arrest records. Pre-existing law stigmatizes offenders with arrest records, while allowing them, by means of prayers for jury trial, to avoid any sanctions or treatment at all save for pre-trial confinement.


The Governor has been ‘mugged by reality’ and has signed these bills, notwithstanding his previous posturing.


These rare instances of sensible behavior are, unfortunately, partially vitiated by his extraordinary performance on the ‘medical marijuana’ issue. It will be recalled that at the 2010 session, a bill passed and was signed recognizing medical use as a defense in a prosecution for marijuana possession. Del. Dan Morheim, a doctor, and others then introduced a bill at the 2011 session designed to give medical users a means of obtaining marijuana lawfully, in a manner that did not enrich the underworld. Enactment of a bill like those in California, Colorado, Arizona, New Jersey and about ten other states was vitiated at the last minute by testimony from the State Health Secretary, Dr. Joshua Sharfstein, urging that the substances to be dispensed, currently partaken of by millions of people per year, were so esoteric and noxious that they should be refined and dispensed only by Maryland’s two teaching hospitals, and urging that a study commission be appointed.


The Commission then rendered two reports, one urging a system of dispensaries like those in other states and the other, signed by Dr. Sharfstein, urging that dispensing be confined to the Great and the Good in teaching hospitals. (It requires a credulity resembling that of the hotel-keeper in the film Casablanca to believe that such a system could be made effective). When legislative hearings ensued, Dr. Sharfstein testified against both bills. Of course, His Master’s Voice in the Governor’s office had nothing to do with this sudden turnabout; Dr. Sharfstein instead evinced sudden concern that he and his illustrious medical colleagues might be threatened with federal criminal prosecution if they dispensed marijuana pursuant to state law.


The implausibility of this is adequately suggested by the fact that our local U.S. Attorney, Rod Rosenstein, has instituted exactly one prosecution for marijuana possession in the last year. It is hard to visualize his prosecuting, or a Maryland jury convicting, Dr. Sharfstein or the high officials of our teaching hospitals, even if one were to assume that the Supreme Court opinion in Raich v. Gonzales would be applied in a criminal prosecution (Raich, litigated as a frontal attack on the New Deal, involved an effort to enjoin the whole panoply of federal drug laws, civil and criminal) . But civic courage in this State has deteriorated since the age of Mencken and Ritchie, when Congressman John Philip Hill deliberately provoked a prohibition prosecution and was acquitted in the federal court.

See Calvert Institute, Prohibition in Maryland: A Collection of Documents (2011), 10-25, available from the Institute at 8 West Hamilton Street, Baltimore, Md. 21201 for $15, ten for $100, postpaid.) Congressman Hill defied a federal law, not an outmoded and scientifically indefensible agency regulation, the source of the federal marijuana prohibition.Other governors whose states have medical marijuana laws, including the governors of Washington, Rhode Island, Vermont and Colorado, have formally petitioned the federal drug enforcement authorities to re-classify marijuana as a substance with medical uses, rather than one more noxious than heroin. Their example has not inspired Governor O’Malley and Dr. Sharfstein. Notwithstanding that illegal drug trafficking generates several hundred murders a year in their city and that the drug trade has become the employer of last resort, if not of choice, in an era of massive and unaddressed youth unemployment (see G. Liebmann, “Promoting Youth Employment in Maryland”, 2 Maryland Journal 65 (2012), they have chosen to behave as pillars of the status quo.

Posted in: Criminal Justice, Drugs