For marijuana law, now the ‘Grown-Up’s Hour’

State has long history of applying legislative fixes to ballot questions

MANY OF US have listened to Longfellow’s poem that reminds us that there “Comes a pause in the day’s occupations, that is known as the Children’s Hour.” Now that democracy has worked its magic in Massachusetts with the legalization of recreational use of marijuana, I suggest it is time for the Grown-Up’s Hour when it comes to the details of the new law.

Democracy works in different ways in different jurisdictions. Massachusetts voters at last year’s election, notwithstanding vocal opposition from the governor, the mayor of Boston, Cardinal O’Malley, law enforcement officials, and a host of others, approved by a significant margin (300,000+ votes) an initiative petition that legalizes the recreational use of marijuana.

The proponents drafted the language, which passed constitutional muster. It was written in such a way that it provided a set of rules for how the new system would work. Even the well-meaning, however, often don’t take into account all the consequences of their drafting. In this case, among other concerns, the level of taxation is far below what is in place in Colorado, Oregon, and other states that have passed similar legislation in recent years. Most believe that the tax to be levied is so minimal that the revenues collected will not even cover the expenses of enforcement.

Initiative petition, referendum, and recall are three of the pillars of the platforms of the Progressive Era. They were adopted in response to frustrations at the legislative process and out of a desire to permit maximum possible participation by the average citizen. Some states, mostly in the west, put most everything on the ballot. California’s ballots are clogged with propositions of all sorts. In Massachusetts, the barrier to entry may be a bit higher; we have fewer issues that find their way to the electorate. In 2016, there were four.

The most famous of all Massachusetts initiative petitions, of course, was the 1980 measure that that created the state’s Proposition 2½ law limiting property tax increases. (For younger readers, please know that before Prop. 2½, there were no overrides, and no Community Preservation Act, with the resulting increasing disparity between the “have” and the “have-not” communities.)

The good thing about initiative petitions is that they are statutes, which can be amended by the Legislature. I often remind students that the word legislate comes from two Latin words which can loosely be translated “to make laws.” After the passage of Proposition 2½, the Legislature saw fit to make legally significant, although not substantively dramatic, changes to the law. It is not that the citizenry is not to be trusted, but often popular movements engage in what is sometimes cynically referred to as the “Lazy Susan” method of drafting: Various groups put together their desired changes and incorporate them into one petition.

The Legislature now faces a similar situation with the measure legalizing recreational marijuana. Members of the House and the Senate do not want to alienate their constituents who voted, quite overwhelmingly, almost everywhere, for the marijuana legalization proposal. They certainly don’t want zealous police officers to arrest their constituents who might believe they are exercising their rights pursuant to the change in the law, especially given the confusion resulting from the comments of Attorney General Sessions and others. On the other hand, they want the system to work and for the revenues collected to be adequate to cover enforcement, and, I expect, public health initiatives.

I think the majority of the people who voted for Question 4 were concerned about the general issue of decriminalization, rather than the specifics. Without regard to whether the Legislature may have brought about the initiative petition by its previous inaction, now is the time for them to step up. The new committee, chaired by Rep. Mark Cusack and Sen. Patricia Jehlen, must study the facts and report out legislation soon.

Meet the Author

The average citizen wants the system to work, even if they may necessarily not partake! At this point in the history of Massachusetts, it’s time for the Grown-Up’s Hour to ensure that will of the people is fulfilled in a manner that is reasonable and practical.

Lawrence S. DiCara is a partner at Nixon Peabody and a former president of the Boston City Council.

  • Bob Btme

    written like a true member of the corrupt political class!

    How DARE you suggest that the hard-working taxpayers, mothers and fathers of Massachusetts are some kind of naive children that need your guidance? We are the most educated state in the US.

    People from political families go to work for the establishment because they don’t have the intellectual ability or hard work ethic to excel in the private sector.

    What does it mean if the voters directly order the government to do something and the government ignores them, and continues to arrest and jail them….continues to invade their homes, take more of their tax money.

    It means you don’t live in democracy any more. You live under fascism.

  • Steven_Epstein

    Attorney DiCara, The legislature has little if any moral authority to change a single comma in Q4 by the willful neglect of the duty to comply with the provisions of the Initiative Amendment, despite knowing the notion of ending marijuana prohibition was not a novelty in July 2015 (See House, No. 1632 of 2013-2014 and House, No. 1561 of 20115-2016) when the process to bring the question to the ballot began. It had plenty of time to present a ‘legislative substitute’ (Article 48 of the Amendments to the Constitution of Massachusetts, III, § 3). The failure of the legislature in this regard makes this committee’s engaging in ‘Monday morning quarterbacking’ appear to be a usurpation.

  • massman

    As a grown up voting citizen of Massachusetts, how patronizing and insulting can one be. I, and the majority of voters approved a ballot initiative. Not the law prohibitionists would like to see.

  • jontomas

    How condescending! – As if the voters are children! – We’ve known since at least 1972 (when the U.S. Shafer Commission released its results on its massive research and review of marijuana) that marijuana is not addictive and has no significant harms.

    The “grown-ups” in the legislatures have had 45 years to do the right thing and stop persecuting millions of good citizens for this near harmless plant! – But they acted like spoiled children and refused to do so, making it necessary for the real grown-ups (citizens) to take the matter into their own hands.

    From the article:

    >>>”Most believe that the tax to be levied is so minimal that the revenues collected will not even cover the expenses of enforcement.”

    Nonsense. – Since marijuana has no significant harms, the only “enforcement” needed is to prevent sales or giving to children and to ensure basic sanitation as we do for all produce.

    There is some justification for extra taxes on alcohol and tobacco. – They cause so much destruction to health and safety, the extra taxes, at least partially, compensate for the huge social costs they create.
    Since science and widespread experience have shown marijuana has no significant harms, there are no social costs to justify extra taxes. – You don’t randomly pick a group of citizens and make them responsible for additional government programs besides the taxes they already pay.

    Further, one of the goals of ending the fraudulent marijuana prohibition is to stop supporting the black-market which is responsible for so much crime, violence and corruption.

    Putting baseless, high taxes on marijuana virtually ensures that black-market will continue.

    After 45 years of shameful inaction and continued persecution of good citizens, the legislature has abdicated any role in marijuana policy. – Instead of trying to gum up the works, they need to examine their own hideous lack of ethics in their failure to do the right thing to protect freedom, justice and truth!

  • dulles1969

    Rather than get indignant about the condescending tone, I am trying to look through this topic through an objective lens… the state legislature is granted the power to levy and collect taxes. Q.4 can continue to exist as it was written but the state legislature can add surcharges outside of those stated in Q.4. There are also topics that Q.4 does not address where state legislature has leeway, for example refining DWI laws. Those I think are two ‘safe areas’ for the state to maneuver.
    But things like home grow limits, legal possession limits, and the structure for setting up (or prohibition of) recreational stores — those have very specific terms outlined in Q.4. Outside of a few very small gray areas that may need to be clarified, the legislature should stay *well away* from meddling. We’ll see how well (or poorly) they do.

    • jontomas

      While they are refining DWI laws, they need to know marijuana is not alcohol. The preponderance of the research shows marijuana consumption is NOT a significant cause of auto accidents. In 2015, the Drug and Alcohol Crash Risk report, produced by the Department of Transportation’s National Highway Traffic Safety Administration, found that while drunken driving dramatically increased the risk of getting into an accident, there was no evidence that using marijuana heightened that risk.

      In fact, after adjusting for age, gender, race and alcohol use, the report found that drivers who had recently consumed marijuana were no more likely to crash than drivers who were not intoxicated at all.

      • dulles1969

        I’m with you on that jt. But there’s still got to be a way to get people who are driving while totally blazed out from behind the wheel. And the officer’s judgment shouldn’t be the sole factor. We *know* some enforcers are going to abuse that, and arrest everyone/anyone for DWI if they find even the slightest trace of influence. Unfortunately an accurate chemical test has proved elusive. Unlike BAC (blood alcohol content), THC/CBD is notoriously hard to pin down as an indicator of influence. Chemical traces like to hang around in the bloodstream for days/weeks after it’s consumed, giving false positives on anyone who has a tolerance.

        I think the legislature does have room to do something here, since Q.4 didn’t address it. There’s lots of opportunity for them to get it wrong, so let’s at least hope they don’t screw it up too badly.

        • jontomas

          Another way marijuana is different from alcohol is that judgement is not affected. – While alcohol consumers think they are better drivers and so drive faster and more aggressively, marijuana consumers are very aware if they have consumed too much to the point of some impairment. If so, they choose NOT to drive. – Marijuana consumers are actually risk averse and don’t put themselves, or others, in danger.

          That’s one of the reasons that – bottom line – research has found marijuana consumption is not a significant cause of auto accidents. – It’s a non-problem. – At most, I would support a test that accurately measures real impairment – like a field sobriety test. – NOT some random measurement of THC concentration.

      • Denise Valenti

        The fatality rate where the driver tested positive for ONLY cannabis/marijuana doubled in both Washington and Colorado. The rates did not spike in Oregon. This certainly warrants study to determine what factors contribute to saving lives of those on the road. What factors contributed to the users of cannabis/marijuana in the state of Oregon to use it more responsibly. legislatures will be comparing the strategies. The report you are citing controlled for the variables of race, gender and age…than came to the conclusion you state…among other discussions of the harm of marijuana impaired driving. BUT, the roads are not corrected excluding males, young adults and people of color: the average driver is still sharing the highway and streets with those under age twenty five, males and those of a race other than Caucasian. The roads are not populated solely with grey haired little old ladies (at least not in Massachusetts) as were the final analysis/data once corrected for age, gender and race in the research you cited. Tests of function are needed. While contributing to a picture of cannabis use, biologic measure of urine, blood, saliva or breath are not able to provide any information on the driving performance. Research is needed. This is near impossible to do on a schedule I drug…..

  • Manuel Hernandez

    Mr. DiCara mentions that this is a statute, “which can be amended by the Legislature.” Great. Unless actually amended by vote in the state legislature, this is a law passed and to be enacted along the timelines set forth in the law. Foot-dragging and committees don’t change that fact. As stated, only legislative amendment would delay it. So bring it.

  • Frank Gerratana

    He says, “[i]t is not that the citizenry is not to be trusted…” — but the entire thesis of this guy’s article is that the citizens can’t be trusted. This is typical of political hacks like DiCara, who is apparently a big-business lobbyist according to his professional profile.

  • QuincyQuarry.com

    Given what all one can only reasonably fear is likely to happen, here’s hoping that the feds crack down on financial institutions that provide banking services to ANY entity that seeks to use the banking system to move marijuana-related money as – clearly – there are no profiles in courage on Beacon Hill.

    Oh, and do note that I fully anticipated the train wreck that was inflicted upon California c/o Proposition 13 BEFORE it was enacted and which makes Prop 2 1/2 look like but a mere speed bump on a street abutting a grammar school.

  • jerost

    Unfortunately those Grown-Up’s have sometimes acted like greedy, petulant children. If Prop 2 1/2 is the most famous initiative petition, then the Clean Elections Law is the second-most. It provided for public funding of elections once candidates had demonstrated significant popular (not from corporations and the wealthy) support via specified numbers of small campaign contributions. Massachusetts for years had, and probably still has, bottom-of-the-barrel ranking among the 50 states in terms of contested primary legislative elections. TWICE Clean Elections initiatives were passed by the people and then delayed, thwarted, throttled and strangled by comfy incumbents led by Speaker Finneran. Finneran & Company were found in contempt by the Supreme Judicial Court but no matter, they managed to kill Clean Elections anyway. Similar laws passed at the time in Maine and Arizona resulted in many new people running and winning office. Only one person in MA utilized Clean Elections successfully during its very short window of existence: Jamie Eldridge. He became a rep and is now a state senator and is still fighting to reduce the influence of money in politics. This is a sorry episode in MA political history.

  • casmatt99

    “Most believe that the tax to be levied is so minimal that the revenues collected will not even cover the expenses of enforcement.”

    Who is this majority of people you are referring to Mr DiCara? Treasurer Goldberg asked the legislature for $10 million to cover the initial funding for regulating the legal marketplace, and by her office’s own estimates, tax revenues under the current rates will lead to $100 million worth of revenue by 2020. In what way is that minimal and not covering the expenses of enforcement? How do you claim to speak for people who have not expressed this opinion?

    The ABCC operates with only $3 million annually; it would seem the prevalence of alcohol gives this agency far more oversight responsibilities than the roll-out of a nascent industry. Yet you fail to explain why cannabis would be more problematic.

  • Jim Borghesani

    DiCara’s sanctimony would be somewhat more tolerable if he had attempted to be accurate. Like most who parachute into this topic, he placed moral superiority ahead of knowledge. As the DOR commissioner made clear in State House testimony last month, tax proceeds from legal marijuana sales will easily cover expenses. But that’s not all DiCara got wrong. His assertion that Q4’s drafters fall short of “grown-up” stature is belligerent; it’s also insulting and utterly ignorant. DiCara should think twice before wading into waters too deep, for all he exposes is his shallowness.

  • 4Objectivity

    Atty Dicara;

    Thankfully folks like yourself are here to guide us simple toe-headed children of the Commonwealth toward prosperity and a bright future! I cannot imagine if we, the voting simpletons, were left to our own devices. I know were would probably vote for things just to have our representation ignore us and do “what’s best” and always have it come up smelling of roses.
    Clearly, Colorado, California, and Oregon are having a horrible time with their marijuana legalization issues. Their opioid addiction numbers going down and the Pharma companies losing some money there is a tragedy we serfs couldn’t fathom. My portfolio be damned! Currently many small businesses are making a great deal of money and that’s a damn shame even though state regulations required ridiculous amounts of stake money to start them. I mean Massachusetts is supposed to look out for the “little guy” and it’s clear they do what with them requiring $1,000,000 to even apply to open a dispensary. That screams of the state looking out for mom and pop.
    I guess that is why the “adults” at the State House are looking into things now. This is the group of folks who were smart enough to vote themselves a “healthy” raise this year and in the same breath say we couldn’t afford a tax free weekend. Pretty savvy so I bet when they put a heavy tax on all things marijuana they won’t even worry that the local dealer will be significantly cheaper and still be in business because the state wants to reach a little too deep into the cannabis pocket. Hell…the adults can handle it for us…that’s why we pay them to think for us.
    We are the constituency that only has cutting edge doctors, scientists, Nobel prize winners, Astronauts, inventors, Presidents and Medal of Honor recipients. Noam Chomsky, Alan Guth, Scott Aaronson and Steven Pinker all teach in Massachusetts and are amongst the top 20 most intelligent people on Earth, within the most educated state in America. But don’t worry about it…the “adults” will handle the big boys decisions about the harmless plant that grows out of the ground that still gives people such as yourself “Reefer Madness” chills.