smoke and mirrors in South Portland

I have lived in the fine city of South Portland for more of my life than anywhere else and, despite my dalliances with other communities, consider it my home town. I also strongly believe that marijuana prohibition has been an unjust disaster in the United States (and Mexico and possibly elsewhere). Logically, then, I was disappointed, if not a little annoyed, that the leading officials of the City of South Portland decided to devote a good chunk of their time on Monday (June 2, 2014) to opposing a symbolic anti-prohibition measure pending in SoPo. First, the mayor, the police chief, two city councilors, and a few others spoke at a press conference to express their opposition to any legalization of recreational marijuana. The city council followed up with a formal resolution that expressed the same principled objection to legalization in the city.

According to news reports, the officials were prompted by the Marijuana Policy Project’s recent attempts to get a citizen initiative on South Portland’s ballots, and they may have endured recent nightmares about the horrors that have ensued since Portland “legalized” ganja last year. And by “horrors” I mean the lack of any noticeable change related to cannabis in the Forest City. I have lived, studied, and worked in Portland for the last two years and have seen neither anything in the news nor anything first-hand that would indicate a surge in marijuana use here. I assume that is because the legalization referendum was mostly symbolic, which has been noted by various sources, such as this freelance writer online. Furthermore, even if it were more substantive, its language suggests only a decriminalization of marijuana possession by adults of legal drinking age. The ordinance did not provide for a Colorado-style total legalization of commerce in marijuana. Still, the Portland Police Department has chosen to, in effect, ignore the solid majority of voters who supported the measure in November of 2013.

Of course, I am aware that state law generally trumps local law when the two conflict, much as states can find their laws overridden by the federal government under the Supremacy Clause of the Constitution. Nonetheless, despite the reality that local governments cannot override state and federal laws, an ordinance like the one proposed for South Portland can perform at least two functions that are important in a (theoretically) democratic nation.

First, it will add to the large body of persuasive evidence that the people of this country, by and large, do not feel marijuana should be prohibited outright. A brief DuckDuckGo search quickly yielded four different credible polls since last spring that show a definite majority of Americans in support of legal marijuana, with regulation and taxation. Under the basic principles of representative government, this should lead to the changes that the majority supports. Although not every issue is proper for a majority vote—for example, the basic civil rights of unpopular minorities should not be subject to majority rejection— legalization of this plant species is the kind of issue that can be decided upon by a majority vote without an infliction of injustice on the minority. However, I should note that the converse is not necessarily true: that is, the desire of individuals to use marijuana should not necessarily be rejected just because a majority may support prohibition. But this post is getting into some deep political philosophy, and so it is time to shift to my next point.

Second, and more immediately, this type of ordinance signals to law enforcement the people’s intent that the police department should exercise its discretion and not investigate or arrest citizens for marijuana possession. Indeed, an ordinance like this practically demands a policy response from the police. Admittedly, local police officers in Maine rarely bother investigating low-level marijuana crimes; but the political grandstanding in SoPo last week leaves no doubt that local leaders (including the chief of the SPPD) still consider this substance harmful and worthy of their attention. Moreover, the possible presence of contraband (marijuana, for instance) has long been used by police officers in this country as an excuse to ignore the Fourth Amendment’s requirement of a search warrant. (The factual background of a Supreme Court case called Kentucky v. King comes to mind.) The consequence of Portland’s ordinance, as well as similar ones elsewhere, I would argue, is a directive from the voters to local law enforcement to leave local pot users alone. As far as the argument that police and prosecutors have a solemn duty to uphold the law, not simply to pick the ones they like: law enforcement does not (and cannot realistically) enforce every rule in the book every time it is violated. Have you ever been issued a speeding ticket for going 5 MPH over the speed limit on the highway? I know I haven’t. (more…)