Prosecute for pot paraphernalia? Not likely

Maryland law makes it a crime to possess drug paraphernalia, though possession of less than 10 grams of marijuana now constitutes a civil offense punishable by an initial fine of $100 — a legal disparity that has prompted many county state’s attorneys to say they will limit prosecutions for paraphernalia possession.

“It seems asinine to charge someone for the wrapping paper when the drug itself is a civil offense,” Montgomery County State’s Attorney John McCarthy said Wednesday.

Prosecuting individuals for possessing marijuana paraphernalia is “completely inconsistent with the spirit of the law” that now deems marijuana possession a civil offense, he added. “There is the letter of the law, but there is also the spirit of the law. The prosecution for the paraphernalia is unfair at this time.”

The disparate treatment of marijuana and the tools for smoking it came to the fore Wednesday, when the law decriminalizing possession of small amounts of the drug went into effect.

The new law makes possession of less than 10 grams of marijuana subject to a civil citation and fine of $100 to $500, depending on the number of violations. Individuals cited for the third time or who are under age 18 must appear in court, where they could be ordered to attend substance-abuse education or rehabilitation programs.

Possession of paraphernalia remains a criminal offense that carries a $500 fine. Individuals who are cited must appear in court, and the crime appears on public records.

The General Assembly, which passed the decriminalization law last session, will consider lifting the criminal sanction on paraphernalia possession next year, legislators said.

“It’s self-evident that paraphernalia possession should not be a criminal fine,” said Sen. Robert A. “Bobby” Zirkin, D-Baltimore County, a chief sponsor of the marijuana-decriminalization bill.

The criminal code’s paraphernalia provision was left intact as part of the legislative compromise to pass decriminalization, he said.

“Keeping that [paraphernalia] criminal was a tradeoff that was made,” he said. “Now, we’ll deal with it on its own merits” next session, added Zirkin, a member of the Senate Judicial Proceedings Committee.

Del. Curt Anderson, D-Baltimore, said the issue of decriminalizing possession of drug paraphernalia will be taken up next session by the House Judiciary Committee, on which he sits.

McCarthy voiced support for decriminalizing possession of marijuana paraphernalia, saying the focus of police and prosecutors should be directed toward combating the rising sale and use of heroin in Maryland.

“It is becoming a drug of choice,” he said. “We have seen a spike to epidemic levels.”

Though Baltimore County State’s Attorney Scott D. Shellenberger said it doesn’t make sense to decriminalize marijuana but not the paraphernalia used to smoke it, he did not rule out prosecuting someone for paraphernalia possession.

For example, prosecution might be appropriate if police with a warrant to search a suspected drug dealer’s home see only a cache of paraphernalia because the drugs have been moved, he said.

“Every case is different,” Shellenberger said. “That might warrant a criminal charge.”

In Harford County, State’s Attorney Joseph I. Cassilly said he has urged police not to charge individuals found in possession of marijuana paraphernalia intended for personal use, such as a pipe or rolling paper. However, charges might be warranted when the type of paraphernalia indicates its use for the sale of marijuana, such as scales to weigh the drug or plastic bags to distribute it, he said.

A paraphernalia possession charge might also be appropriate when the person is being prosecuted for driving under the influence of drugs and the paraphernalia that helps prove the underlying charge was lawfully seized from the car, Cassilly said.

Calvert County State’s Attorney Laura L. Martin said she has “taken a sort of middle-of-the-road approach.”

Possession of drug paraphernalia is prosecuted if it is part of other criminal charges but not if it is tied to a civil offense, she said.

Jonathan G. Newell, state’s attorney for Caroline County, said he is loath to prosecute someone simply for possession of marijuana paraphernalia but does not rule it out entirely.

“I’m not going to cede all discretion, but it’s going to be few and far between and pretty compelling,” Newell said. “It will have to be a compelling case to pursue prosecution for paraphernalia possession related to marijuana.”

Such compelling cases could include violation of probation if one of the conditions was complying with the state’s drug laws or if a large quantity of paraphernalia is found in someone’s possession, Newell said.