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Photo of Matt M. McClenahen

Pennsylvania Marijuana Decriminalization Bill Still Needs Some Work

On Behalf of | Mar 31, 2014 | Uncategorized

The marijuana decriminalization bill recently introduced by Pennsylvania State Senator Mike Stack is a nice first step, but does not address all the current problems caused by Prohibition. The bill would reduce possession of a small amount of marijuana for personal use (less than 30 grams) to a summary offense for the first two offenses. Anyone unlucky enough to receive a third small amount of marijuana charge could be charged with an ungraded misdemeanor, at the discretion of the district attorney. Most Pennsylvania summary offenses are punishable by up to 90 days in jail, but Senator Stack’s bill would eliminate the possibility of jail time for the first two convictions. Rather than jail time or probation, defendants would be subject to court costs and a fine not to exceed $500.

As a criminal defense attorney near Penn State University, I handle a large number of marijuana possession cases. Many students and parents are shocked to learn that a marijuana possession charge requires a trip to the Centre County Correctional Facility to be fingerprinted and photographed. This places the defendant in criminal data bases maintained by the FBI and Pennsylvania State Police Central Repository of Criminal Records. If this bill becomes law, small amount of marijuana will no longer be a fingerprintable offense.

The bill would also now make it possible to obtain an expungement for a small amount of marijuana conviction, without the arduous process of seeking a governor’s pardon. As with other summary offenses, a defendant could seek expungement five years from the date of his conviction, as long as he is not prosecuted for any new criminal convictions in the intervening five years.

Summary offenses are handled at magisterial district courts, rather than in the courts of common pleas, unless the summary offenses are attached to misdemeanors or felonies arising from the same incident. Summary offenses are prosecuted directly by police officers, and district attorneys offices are rarely involved. Thus, this bill would free up prosecutorial resources for more important matters, so not surprisingly, some of the more enlightened and pragmatic district attorneys in this commonwealth support the bill.

In my opinion, the biggest problem with this bill is that it does not address the separate crime of possession of drug paraphernalia, which is one of the more bizarre glitches in Pennsylvania law. Currently, a person convicted of possession of drug paraphernalia such as a bong, bowl, rolling papers or even a plastic Ziploc bag used to hold illegal drugs, is subject to up to one year of jail or probation and a $2,500 fine, yet a person charged with possessing less than 30 grams of cannabis faces a maximum sentence of 30 days incarceration or probation. Of course, almost all small amount of marijuana charges are accompanied by a charge of possession of drug paraphernalia. Accordingly, only a tiny fraction of marijuana defendants would benefit from this bill. With an accompanying drug paraphernalia charge, these defendants will still be fingerprinted and photographed, have their cases handled in the courts of common pleas, and have their cases tying up the limited resources of district attorneys offices, public defenders offices, probation departments and common pleas court judges.

This bill also fails to end the driver’s license suspensions triggered by a conviction for possession of a small amount of marijuana. Currently, a defendant is hit with a six month driver’s license suspension for a first offense conviction for possession of a small amount of marijuana, even if the incident had absolutely nothing to do with a vehicle. If you commit a rape or assault in Pennsylvania, your driver’s license will not be affected, but if you smoke cannabis in your dorm room while watching “Saturday Night Live,” you could lose your driver’s license.

There is absolutely nothing this bill can do about federal law related to student loans and financial aid, so these evils would persist even with the bill’s passage. A conviction of a drug possession offense disqualifies students from federally subsidized student loans and financial aid. A conviction for DUI, assault, robbery, burglary, rape, etc. has no impact of student loans or financial aid. This is just one of many absurdities to have arisen from the War on Drugs.

Even though I think this bill needs some work, it really doesn’t matter. It has virtually no chance of being passed in the near future. Gerrymandering has created an all but guaranteed permanent GOP majority in both state houses. Like the senior citizens who vote for them, many Pennsylvania Republican politicians continue to view cannabis as a culture war issue as if the old 1960s “hardhats versus hippies” dichotomy were still relevant in the Twenty First Century. Also, Governor Tom Corbett is a former attorney general and hardcore champion of Prohibition, meaning that this bill can become law only if Corbett loses in November.

Matt McClenahen is a criminal defense lawyer in State College, Pennsylvania, home of Penn State University. A large part of his case load involves representing victims of Marijuana Prohibition.

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