Lawmakers in Maryland took a decent if half-hearted step this month when they voted to decriminalize marijuana. Gov. Martin O’Malley signed the bill into law April 14.
But they apparently forgot an important detail when they codified cannabis reform into law: They forgot about the bongs, the pipes, the rolling papers, the little plastic bags. They forgot about the paraphernalia.
Possessing less than 10 grams of marijuana (about a third of an ounce) is now a civil violation, punishable only by a small fine, similar to a traffic ticket. It used to be a misdemeanor until the legislature decriminalized it.
But they left paraphernalia out of the bill. Possession of any of the many things associated with marijuana use is still a misdemeanor, a crime.
That means if police stop you on the freeway with a touch of weed, a lighter, and some rolling papers in your car, you can be arrested and charged with a misdemeanor – and fined $500. Not because of the pot, but because of the papers.
State Sen. Robert Zirkin, who authored the bill, said he intentionally stopped short of full decriminalization for paraphernalia. Instead, he removed jail time and reduced the fine.
He didn’t want to decriminalize paraphernalia, he said, because police often use it as probable cause to search vehicles. Of course, that’s a major reasons critics want it downgraded: If weed isn’t legal grounds for a search, paraphernalia shouldn’t be either. Saying it is just gives police an excuse to conduct inappropriate searches.
“There is some incongruity there,” Zirkin acknowledged.
Not all paraphernalia is illegal. Paraphernalia alone, not connected to a drug, is semi-legal. If you used a bong as a tobacco pipe or kept it for decoration, the police probably couldn’t arrest you. But circumstantial paraphernalia – items than can be tied to drug use – is illegal.
Rolling papers found with weed would be illegal, in other words. So would a pipe with cannabis residue. All of which leave unanswered the question: Why is Maryland still arresting small-time users after declaring an end to criminal possession?
Nobody seems to have much of an answer.
Sara Love, public policy director for the ACLU’s Maryland chapter, said Zirkin didn’t decriminalize paraphernalia because he worried it would sink his bill. She said she hopes police will honor the intent of the law and avoid arresting Marylanders for paraphernalia.
But police are taking the largely incorrect position that all paraphernalia of any kind is illegal, regardless of how or whether it is used.
“If I find a marijuana pipe, no residue in it, there’s a man not sitting there not smoking it, under current law it is paraphernalia,” said Greg Shipley, spokesman for the Maryland State Police.
Not all paraphernalia is criminal and police do, in fact, have wide discretion in dealing with such busts.
As for now, lawmakers say there isn’t much that can be done. New legislation is probably required to decriminalize paraphernalia. State Delegate Mike Smigiel, a supporter of the bill, said it would be a difficult problem to solve.
“You could do it by regulation,” Smigiel said. “You could have the attorney general get involved, I don’t know how, you can get creative. But there is a problem.”