The D.C. Council on Tuesday is poised to make the city one of the nation’s most lenient for marijuana possession, easing penalties that most often ensnare African Americans including a potential one-year jail sentence that is expected to be reduced to a $25 fine.
To keep the odor of marijuana from wafting across the nation’s capital, however, city lawmakers in recent weeks pulled back from an even more liberal proposal to buffer residents from arrest: Smoking marijuana in public would remain a crime, akin to toting an open can of beer, and would carry a maximum penalty of up to six months in jail.
Amid growing support locally and nationally for legalizing marijuana, D.C. lawmakers said they are acting out of an interest in greater social justice when it comes to pot arrests — not civil liberties to allow more drug use. By leapfrogging many states in loosening its marijuana laws, the city is firmly planting itself in a national debate over legalization — even as questions remain about how much a new law might accomplish.
Decriminalizing possession of marijuana, but leaving the act of smoking the drug a crime, critics say, will keep alive concerns about racial profiling in arrests. It also will add gray areas in policing: D.C. officers would not be able to arrest on the smell of marijuana, for instance; they would have to see the smoke. And being marijuana-impaired in public would not be a crime equal to public intoxication — unless it occurs behind the wheel.
“It’s what I’d call the growing pains” of inching toward legalization, said Council Chairman Phil Mendelson (D), who led the charge against a broader measure to eliminate all criminal penalties, saying he did not want his daughter to encounter people smoking marijuana on city streets.
Advocates for the bill say it is still a strong measure that builds on similar laws passed in California and Massachusetts. For one, the D.C. law protects people who share marijuana from being prosecuted as dealers.
The D.C. law would also preclude police from charging people with possession or dealing if they simultaneously possess large amounts of cash and several bags of marijuana. Some advocates say that poorer residents are often paid for their work in cash and buy the drug in small amounts multiple times on their payday.
Given the District’s overlapping web of local and federal law enforcement, it’s unclear whether federal agencies will agree. District drug laws would conflict with federal ones, and little is known about how federal agencies in the city would respond when they see people abiding by the District’s new law but violating federal statute.
It would be legal under District law, for instance, to carry up to an ounce of marijuana split into dozens of bags, the drug paraphernalia to smoke it and an unlimited amount of cash. But under federal law, those conditions could be used to charge someone with possession with intent to distribute, potentially drawing years in prison and other steep penalties.
Under President Obama, the Justice Department has not sought a confrontation with states including Colorado and Washington where voters have legalized recreational use of marijuana. Historically, the agency also has not devoted resources to prosecuting individuals for drug possession.
Federal officers in the District do make arrests. Last year, the U.S. Park Police, which has jurisdiction over the Mall and nearly every park and traffic circle in the city, recorded 501 “incidents” involving marijuana.
Park Police spokeswoman Lelani Woods said that since the law has not been enacted, the agency has not formed a response. However, she said “there is nothing to suggest that this is going to be our standard,” Woods said of the more lenient city bill.
The measure passed a first vote in the council last month with only one dissenting vote, and Mayor Vincent C. Gray (D) said he supports it. In recent days, a majority of council members said in interviews that they would support the bill in a final vote. The only remaining question appears to be whether Council member Vincent B. Orange (D-At Large) will succeed in adding a provision to outlaw drug testing by D.C. employers.
Orange argued that more poor residents will smoke but end up being discriminated against for jobs because they will fail drug tests.
With or without the amendment, the measure would face a 60-day review period by Congress, which has upended only four city laws in 40 years.
Council member Tommy Wells (D-Ward 6) who authored the measure, said he is confident that it will become law.
“I think that even a conservative Congress would leave this alone. An incredible waste of government resources goes into the criminalization of marijuana” by police, courts and jails, Wells said. “And it’s law that creates more public harm than public good.”