Pot still illegal in parts of Massachusetts under federal jurisdiction
BOSTON — Marijuana legalization in Massachusetts has a big federal asterisk.
Bay Staters last week celebrated their new freedom to carry and gift up to an ounce of marijuana, displaying the drug openly on the Statehouse steps on Thursday, the day the marijuana legalization ballot law took effect.
Had they brought bags of pot to celebrate at Hanscom Air Force Base, aboard the Acela or at Race Point Beach on the tip of Cape Cod, those revelers might have subjected themselves to a federal citation.
Peter Elikann, a criminal defense attorney who has represented a few people caught with marijuana on federal property, said that in some ways federal prosecution is worse than how state courts used to handle possession charges.
Whereas state prosecutors used to agree to a continued-without-finding ruling along with probation and potentially drug counseling, federal prosecutors seem more inclined to proceed toward a conviction, Elikann said.
"You don't necessarily want to ruin that person's future on a one-time relatively minor first-time offense," said Elikann, who is the former chair of the Massachusetts Bar Association's Criminal Justice Section. He said, "You don't want to ruin their future forever with a conviction that will come back to haunt them the rest of their life."
The manner and means by which federal agencies plan to keep up their enforcement of federal anti-marijuana laws varies from department to department.
At Logan International Airport, where Transportation Security Administration agents perform body-scans and luggage checks to ensure no weapons make it aboard airplanes, a different approach is taken toward illegal drugs.
When a TSA agent encounters illicit materials in someone's luggage — such as an ounce of marijuana or a stack of fraudulent credit cards — the matter is referred to law enforcement, according to TSA spokesman Michael McCarthy. At Logan, state police have jurisdiction, he said.
A letter from Public Safety and Security Secretary Daniel Bennett to State Police Col. Richard McKeon spells out that adults 21 and older are allowed to possess up to an ounce of marijuana outside their home and it will "no longer be lawful for police to seize small quantities of marijuana for forfeiture, as has been past practice."
Elikann cautioned that transporting marijuana across state lines is "clearly in violation of federal law." The state law permits people to carry up to one ounce outside their home and grow up to six plants per-person. A regulatory regime for retail sale of the drug is not yet established, and unregulated sales remain illegal.
Railroad passengers traveling to New York or Maine with cannabis will not encounter much lenience.
"Due in part to Amtrak's duty as an intercity rail system operator to follow federal law and federal oversight regulation, Amtrak views marijuana use and possession on Amtrak property as an illegal act in violation of federal law. Thus, marijuana use and possession, including medical marijuana, is still, and will remain, prohibited on Amtrak property, including trains," Amtrak spokesman Mike Tolbert said in a statement. He said Amtrak police would make arrests.
The National Parks Service owns several properties in Massachusetts of historical significance and natural beauty, including the Springfield Armory that provided Union Army guns during the Civil War, Cambridge's Longfellow House where George Washington made his headquarters at the start of the American Revolution, and the 44,600 acres of beach, marsh and uplands that make up the Cape Cod National Seashore.
The Parks Service has 39 law enforcement rangers stationed at its Massachusetts properties, sharing jurisdiction with the state at the sites, according to a spokeswoman. The park rangers plan to uphold the ban on federally controlled substances and over the past three years there were 276 "occurrences" involving illegal drugs at national parks in Massachusetts, according to Stephanie Loeb of the Parks Service.
The National Parks prohibit possession of a controlled substance unless it was obtained "pursuant to a valid prescription or order, from a practitioner acting in the course of professional practice or otherwise allowed by federal or state law."
The total federal acreage in Massachusetts is 61,802, or 1.2 percent of the state, according to the U.S. Department of the Interior. That includes land managed by the Bureau of Land Management, the Forest Service, the Fish and Wildlife Service, the Parks Service and the U.S. Department of Defense.
Offshore, the U.S. Coast Guard has jurisdiction in all navigable waters of the United States, including Boston Harbor where the Coast Guard has a base in Boston's North End, and where Boston Police and State Police also share jurisdiction, according to Boston Police Lt. Mike McCarthy.
If the Coast Guard boards a boat and discovers marijuana on board the officers will confiscate it, and if there is more than an ounce, the suspected offender will receive a citation and fine, according to Cynthia Oldham, of the Coast Guard. Anyone deemed to be operating a boat under the influence of marijuana or other intoxicants will be taken into custody and turned over to law enforcement on shore, she said.
The Coast Guard has other installations in Massachusetts, including Woods Hole, New Bedford and Weymouth, according to its website.
According to the pro-marijuana advocacy group NORML, the federal penalty for first-time possession of marijuana is up to a year incarceration and a $1,000 fine. Elikann said defendants are usually surprised to wind up in federal court for marijuana possession.
"I think they're very surprised that there's federal jurisdiction," he said.
The U.S. Postal Inspection Service already has dedicated postal inspectors tasked with intercepting illegal drugs in packages, according to public information officer Emily Spera. She said legalization in Massachusetts might increase the number of suspicious packages located.
Massachusetts houses six major military installations: Hanscom Air Force Base, Natick Soldier Systems Center, Joint Base Cape Cod, Fort Devens, Westover Air Force Reserve Base and Barnes Air National Guard Base.
Military installations are covered under federal law, which prohibits marijuana possession, while the specifics of law enforcement varies base-to-base, according to Ben Sakrisson, a spokesman for the U.S. Department of Defense.
At Hanscom, military police handle low-level offenses, such as possession of a small amount of marijuana, according to Bedford Police Chief Robert Bongiorno, who said military police typically issue a federal summons for possession.
Members of the military face greater risks for violating the federal drug laws.
"The consequences for breaking this law could be career ending," Hanscom public affairs wrote in an article posted Thursday. A military member subject to the Uniform Code of Military Justice who "wrongfully uses, possesses, manufactures, distributes" marijuana on- or off-base could face a court martial, according to the Hanscom article.
The federal prohibition on marijuana continues to apply to the Massachusetts National Guard, according to Col. James Sahady, who said a member of the Guard who is found to be in possession of marijuana or who tests positive for marijuana would be processed for discharge.
Bedford, Lexington, Lincoln and Concord have jurisdiction at Hanscom and historically, local officials have had responsibility for larger crimes, such as trafficking marijuana, Bongiorno said. He said officials at Hanscom have aimed to inform the base population that marijuana is still illegal there.
"I think what they're really gearing for is really an education effort. They need to really remind their base population... that even though marijuana's been legalized in Massachusetts, the military installation is a federal property and it's still illegal under federal law," Bongiorno said. He noted the drug is also still illegal at the Veterans Affairs medical center in the town.
The U.S. Drug Enforcement Administration continues to enforce the nation's drug laws. A DEA press release from May reported that David Dulchinos of Easthampton was sentenced to 1.5 years imprisonment for distributing nearly 400 grams of cocaine and just under one ounce of marijuana.
Elikann said the FBI and DEA have jurisdiction over drug crimes across the country, but usually only investigate marijuana cases when there are "truckloads or boatloads" of the drug, not "some petty amount."
"We do not have any artificial thresholds," said DEA spokesman Russ Baer, who said the agency is primarily focused on Mexican cartels and violent, urban gangs. He said, "We don't go after the drug consumer."
A spokeswoman for U.S. Attorney Carmen Ortiz said she does not have stats on prosecution of less than an ounce of marijuana.
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