Massachusetts Supreme Judicial Court Rules Social Sharing of Marijuana is not Criminal Distribution

April 5, 2013 2:39 pm

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ACLU challenged Commonwealth’s interpretation that sharing small amounts of marijuana, which voters made non-criminal in 2008, could still be considered a crime.

April 5, 2013

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BOSTON — The Massachusetts Supreme Judicial Court has ruled today that socially sharing small amounts of marijuana is not a crime.

Despite approval by Massachusetts voters of a ballot measure in 2008 that decriminalized possession of up to one ounce of marijuana, unwarranted investigations of marijuana possession continued, based on the theory that sharing marijuana is “distribution,” even when no money changes hands.

Last November, the American Civil Liberties Union of Massachusetts and the national ACLU, with cooperating attorney Alex Philipson, submitted a friend-of-the-court brief in Commonwealth v. Pacheco, one of the cases the state’s highest court decided today. The ACLU challenged the Commonwealth’s claim that sharing small amounts of marijuana, which voters made non-criminal, could still be considered a crime. Today’s court rulings are completely consistent with the ACLU’s position.

“The Commonwealth was simply wrong to argue that sharing marijuana constitutes criminal distribution,” said Matthew R. Segal, legal director of the ACLU of Massachusetts. “Today’s rulings mean that people who share small amounts of marijuana don’t have to fear criminal prosecution or having police officers use the sharing of marijuana as a reason to search their belongings. Just as important, hopefully these rulings mean that police officers will focus on serious crimes instead of wasting their time investigating people sharing marijuana.”

In 2008, more than 62 percent of Massachusetts voters approved a measure meant to reduce punishments for marijuana offenders. Possession of up to one ounce of marijuana is still an infraction of the law punishable by a fine, but is no longer a criminal offense. Nonetheless, the Commonwealth argued that sharing non-criminal amounts of marijuana constitutes distribution — a crime punishable by up to two years in prison. This approach was especially troubling when applied in ways that allow even stricter penalties, such as cases involving incidents in school zones.

Commonwealth v. Pacheco stemmed from an incident that occurred after decriminalization went into effect, when a Massachusetts state trooper encountered a car with occupants who seemed to have used marijuana. Upon ordering the occupants out of the car and searching the entire passenger compartment, he found nothing more than a single bag containing less than one ounce of marijuana. Nonetheless, the officer expanded his search to the trunk of the vehicle and to jackets and backpacks stored inside. Today the Supreme Judicial Court held that the search was unconstitutional.

“Massachusetts is already struggling to deal with the complications of the state drug lab scandal, which might require re-trying ten of thousands of drug cases, on top of the ordinary case load,” said Carol Rose, executive director of the ACLU of Massachusetts. “The Commonwealth should be doing everything it can to reduce the burden on our criminal justice system — not forcing more and more people into it for nonviolent drug offenses that Massachusetts voters have clearly said should be deprioritized in favor of fighting serious crime.”

For copies of the Supreme Judicial Court’s rulings today, go to:

For more information about Commonwealth v. Pacheco, go to:

For more information about Commonwealth v. Cruz, go to:

For more information about the ACLU of Massachusetts, go to:

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