With Philadelphia poised to become the largest city in the US to decriminalize marijuana, many people are asking how a city has the legal authority to enact its own drug laws. After all, Pennsylvania law already provides penalties for possession, cultivation and sale of marijuana in the Drug Device and Cosmetic Act. Likewise, the federal government also bans the possession, use and distribution of marijuana, however, the feds generally charge people with possession of marijuana only if the offense happened on federal land, like a national park, leaving all other misdemeanor-level drug enforcement to the states. So is Philadelphia a free-city state, able to enact its own laws in contravention of state and federal law?
The short answer is no, Philadelphia cannot enact drug laws, which conflict with state and federal law. Rather, Philadelphia City Council recently passed a bill by an overwhelming majority, which bans the possession of less than 30 grams of marijuana, just as it is already banned under state law. Mayor Nutter is expected to sign this bill into law in the near future.
The key difference between Pennsylvania law and the Philadelphia city ordinance is the penalty. Under Pennsylvania law, possession of less than 30 grams of cannabis is an ungraded misdemeanor punishable by up to 30 days in jail and a $500 fine. Under the Philadelphia city ordinance, possession of less than 30 grams of cannabis would be punishable by a $25 fine, while toking in public would be punishable by a $100 fine.
It is not just the direct penalties for marijuana possession, which differ between Pennsylvania law and Philadelphia's decriminalization ordinance, but also the collateral or indirect consequences. A person charged with any misdemeanor in Pennsylvania is required to be fingerprinted and photographed. This information is then catalogued in the Pennsylvania State Police Central Repository of Criminal Records in Harrisburg, as well as NCIC, (National Crime Information Center), which is maintained by the FBI. In short, a non-violent marijuana user can very well end up with a criminal record, while a person convicted of a city ordinance will not have a criminal record. Additionally, a person convicted of drug possession, including marijuana, will lose his Pennsylvania driver's license for six months, even if the offense had nothing to do with driving, while those convicted of a city ordinance would not lose their driver's licenses. Lastly, a person convicted of drug possession under state law will lose his or her eligibility for federally subsidized student loans, while a person convicted of a city ordinance violation would not lose federally subsidized student loan eligibility.
While the Philadelphia City ordinance penalties are lenient compared to the ridiculously harsh consequences for marijuana possession under Pennsylvania law, it is important to note that the Pennsylvania Drug Device and Cosmetic Act will remain in full force and effect in Philadelphia County just as it is in all 66 other Pennsylvania counties. This means that police can still charge people under the state law, just as they always have. What the new ordinance does, is give the police the discretion, but not the obligation, to charge a lesser offense.
Philadelphia Police Commissioner Charles Ramsey has stated to the media that he will instruct his officers to continue to charge low-level marijuana offenders with misdemeanors, rather than with the more lenient city ordinance. It will be interesting to see what position the Philadelphia District Attorney's Office will take. My guess is that the DA will support the city ordinance as a means of unclogging the overwhelmed criminal court system with trivial cases like marijuana possession. If the Da supports the ordinance, then I would expect the police to follow suit, regardless of Commissioner Ramsey's prior statements.
Matt McClenahen is a criminal defense lawyer in State College, Pennsylvania, home of Penn State University. He has been on the NORML Legal committee since 2006, and has been defending victims of marijuana prohibition since 2001.