D.C. Council votes to eliminate jail time for marijuana possession

by Aaron C. Davis, Washington Post

Possessing marijuana and smoking it in the privacy of one’s home would no longer be criminal offenses in the nation’s capital under a bill passed Tuesday by the D.C. Council, putting the District at the forefront of a simmering national debate over decriminalization.

Mayor Vincent C. Gray (D) intends to sign the bill, which would partially decriminalize pot by imposing civil fines rather than jail time for most offenses. The District joins 17 states that have taken similar action but doesn’t go as far as Colorado or Washington state, where voters have legalized the sale and taxation of marijuana. A bill to decriminalize marijuana use is pending in the Maryland General Assembly, along with a bill to legalize the drug.

The District also stopped short of legalizing public smoking — a decision influenced by the input of police officials, parents and others who remain unconvinced that full decriminalization is a good step for the city.

The District’s unique rules of governance require the bill to sit before a congressional panel for 60 days before it becomes law, but several advocates said they don’t expect federal lawmakers to intervene. More broadly, advocates celebrated the 10 to 1 council vote as the latest reflection of growing mainstream support for recreational marijuana use. Their cheers were muted only by concerns that the council didn’t go far enough to reverse the city’s history of disproportionately arresting African Americans on drug charges.

“D.C. will serve as a model for jurisdictions where, for one reason or another, full taxation and legalization is not yet possible,” said Ethan Nadelmann, founder and executive director of the pro-legalization Drug Policy Alliance. The landmark vote, he said, will leapfrog the District ahead of even California and Massachusetts, which have passed more legally complicated decriminalization measures in recent years.

By playing out in the nation’s capital, the drama highlights the persistent conflict that decriminalization creates with federal law. It remains unclear how overlapping local and federal jurisdictions will affect enforcement, particularly in national parks. Someone could be arrested under federal law, for instance, for possession on the Mall.

Elsewhere in the city, the penalty for possession of up to an ounce would drop to a fine of $25 — smaller than in any state except Alaska. Consumption in private residences would draw the same fine, unless in public housing, which is governed by federal law. The bill would equate smoking marijuana in public to toting an open can of beer; a misdemeanor with a maximum penalty of $500 and up to six months in jail, down from a potential $1,000 fine and one-year jail sentence.

Across the country, decriminalization efforts have been promoted primarily as an expansion of civil liberties meant to frame recreational pot use as a personal choice with few societal consequences and little need for government oversight.

But in the District, the movement has been framed as a civil rights issue, particularly in the past year, after a series of reports detailed greater racial disparity in drug arrests here than in most major U.S. cities.

“In D.C., there are more than 5,000 arrests per year for marijuana; 90 percent are African American,” said council member Tommy Wells (D-Ward 6), the lead sponsor of the bill. “One drug charge can change a life forever. Our action . . . does not repeal all negative impacts caused by criminalization of marijuana, but it moves us in the right direction.”

Council member Marion Barry (D-Ward 8), who continued to recuperate from a recent illness in an inpatient rehabilitation center, did not vote. But in a phone interview, Barry praised the outcome. “This is a great day for Washington, for young black men who have been caught up in the criminal justice system for a bag of marijuana,” he said.

Once signed, the bill must go to Congress, which will have 60 legislative days to reject it. That would take an act of both the House and the Senate, an outcome that has happened only three times since 1979.

If congressional opponents of looser drug laws are set on blocking the measure, it is more likely that they would seek to undermine it through the District’s annual congressional budget review. Congress repeatedly used riders to District funding bills to suspend a voter-approved medical marijuana program from 1998 to 2010, when it was finally able to proceed.

Rep. Darrell Issa (R-Calif.), chairman of the House committee that has jurisdiction over many District affairs, declined to comment through a spokesman.

But Del. Eleanor Holmes Norton (D), the city’s nonvoting member of Congress, said she does not expect her colleagues to “interfere.” If they do, she said, “I will stoutly defend D.C.’s right to pass such legislation, just as 17 states have already done.”

Implementing and enforcing the measure promises to be an ongoing challenge. How the law is interpreted by federal agents in the city could depend largely on who is president.

Under President Obama, the Justice Department has not sought a confrontation with states that have legalized or decriminalized marijuana. But more than two dozen federal law enforcement agencies operate in the District, and some routinely make traffic stops and arrests.

Last year, the U.S. Park Police, which has jurisdiction over the Mall and nearly every park and traffic circle, recorded 501 “incidents” involving marijuana. The agency has not formed a response to the D.C. measure, but a Park Police spokeswoman said there is “nothing to suggest” it would follow the city’s lead.

Not all city leaders view full decriminalization as good for the city or, in particular, for its African American population. Council President Phil Mendelson (D) led the effort to stop short of allowing public smoking, capturing a prevalent sentiment among parents when he said he didn’t want his daughter sitting next to people getting high in public.

“Society says you can’t drink in public. I’m sure the public will feel that way in short order with regard to public smoking of marijuana,” Mendelson said. “It’s one thing to talk about treating the substance like we do alcohol; another to talk about how we treat the behavior.”

The lone dissenter Tuesday was council member Yvette M. Alexander (D-Ward 7), who said that the half-measure was poorly crafted and that the council should either keep it illegal or fully allow it.

“There will not be any reduction in the amount of arrests because . . . there will still be arrests when someone is smoking marijuana on the corner, or when someone is selling marijuana on the corner,” Alexander said. “If you’re the lucky one who happens to possess it, then you’re off the hook.”

Council member Vincent B. Orange (D-At large) voted ”present,” protesting a failed amendment to ban drug testing by D.C. employers.

Council member Jim Graham (D-Ward 1) warned that the city should prepare to deal with the fallout of addictions from increased use and mount a public service campaign like it does against underage use of alcohol to warn children of the dangers

“This is not saying we’re decriminalizing a harmless substance . . . when abused it is harmful,” Graham said. “But we know also the effects and consequences of being arrested, especially if you are a young person, are indeed harmful.”

D.C. voters could have an opportunity this year to weigh in. A band of marijuana activists in the District is awaiting final word from the D.C. Board of Elections on whether advocates can proceed with gathering signatures for a November ballot measure to authorize full legalization of marijuana in the city.

The Elections Board could decide as early as Wednesday on the measure, which would allow people 21 or older to possess as much as two ounces of marijuana for personal use and grow up to three plants at home. It also would allow marijuana growers to transfer, but not sell, small amounts to others, as well as legalize the sale of bowls, bongs and other cannabis paraphernalia.