Massachusetts Supreme Court Undermines Voters, Overturns Lower Court Ruling on “Intent to Distribute” Charge

An opinion released yesterday by the Supreme Judicial Court of Massachusetts stated that a person found with a small amount of marijuana could still be charged with intent to distribute, despite a 2008 law removing criminal penalties for possession of less than an ounce of marijuana.

The statement comes from the ruling on a 2010 case in which a person with around six grams of marijuana in three separate bags was charged with intent to distribute marijuana. Defense attorneys argued that intent did not matter if the amount was less than an ounce because there are no criminal charges for that amount. A lower court judge agreed, but was overruled by yesterday’s decision.

The law that removed criminal penalties for small amounts, passed through referendum in 2008 by a significant majority of voters, was not intended to remove penalties for sale of marijuana. But intent to sell is something entirely different. It is highly doubtful that anyone with less than an ounce has the intent to distribute any of it. The burden of proof must lie on the state when charging someone with so little marijuana with being a distributor. To have it otherwise could provide overzealous prosecutors with a method of circumventing the 2008 law.

In this particular case, the ruling is based on pretty flimsy evidence. The defendant had six grams of marijuana stored in three separate bags when he was searched. Even though the police did not witness him conduct a sale, he was charged with intent to distribute simply because his marijuana, which was less than a quarter of what he would need to invoke criminal penalties, was not stored in a single container!

Even disregarding the possibility that this person had different strains of marijuana that he did not want to mix together, or that perhaps he had purchased the marijuana that way and had not thought to consolidate it, the fact remains that it is no more than a civil infraction under Massachusetts law to have less than an ounce of marijuana in one’s possession. The law does not mandate that it must be in a single container. If the authorities believe that someone with less than an ounce of marijuana is actually selling it, they should have to prove it beyond a reasonable doubt. Three tiny bags do not qualify.

When voters passed the law in 2008, they knew what they were doing. They voted to remove criminal penalties for possessing less than an ounce of marijuana. Period. It doesn’t matter if that marijuana is in one bag or ten. If it is less than an ounce, there should be no criminal charges. If there is a sale, let the evidence show it. If not, as was the case here, then the matter should be handled the way the voters declared: with a civil infraction.

Some vocal law enforcement critics of the 2008 law have had trouble adjusting to the new system. It will come as no surprise if police and prosecutors begin looking for increasingly inventive and disingenuous ways to claim that marijuana users have the intent to distribute the contents of their pockets. Maybe next they will claim that simply carrying marijuana with you is proof enough of intent to distribute. All so that a few people who don’t like marijuana use can keep arresting people for it and ignore the considered opinion of the majority of Massachusetts.