ROBERT SIEGEL, host:
This past Election Day, Massachusetts voters decriminalized possession of marijuana. As of January 2nd, being caught with less than an ounce of pot in the commonwealth will result in a $100 civil fine. Critics of the new law say the language is vague, and authorities across the state are struggling with how to enforce the statute when it goes into effect. District Attorney David Capeless, president of the Massachusetts District Attorneys Association, joins me now from his home in West Stockbridge, Massachusetts. Welcome to the program.
Mr. DAVID CAPELESS (Massachusetts District Attorney): Glad to be here, Robert.
SIEGEL: And as I understand it, in Massachusetts, one doesn't have to carry any ID. So, if somebody's caught with marijuana, assuming they're not driving, someone could refuse to say who they are.
Mr. CAPELESS: That's correct. There weren't provisions contained in this law or otherwise in our statutes that would require somebody to identify themselves, and unless the police knew who they were dealing with, that person would have to provide the information in order for them to give them a citation.
SIEGEL: And that problem hasn't arisen in other kinds of laws, whether it's the sale of alcohol or cigarettes and age limits?
Mr. CAPELESS: Well, all of the others - you know, there's a series of statutes and regulations that back up those kind of provisions. For instance, to drive a car, you have to have a license; you have to carry that license on your person when you're driving a car. In fact, you have to show it to an officer who has stopped you. When this law was written, it didn't provide for those sorts of things, and changes are going to have to be made.
SIEGEL: Is it normal for laws that are passed by referendum to come complete with loopholes, let's say?
Mr. CAPELESS: Yes, because they are not written by people who think in those terms of the broader picture. But more importantly, I think, with this one, it was written by people who wanted the law to pass, but then once it was enacted to actually fail in its effect, because these people didn't want decriminalization. What they really wanted was legalization, and then this is going to end up being de facto legalization unless changes are made.
SIEGEL: So, you need some implementing legislation here, is what you're saying.
Mr. CAPELESS: Yes.
SIEGEL: Or perhaps even requiring somebody to have a license to smoke pot, is what I hear you're saying.
Mr. CAPELESS: That or, you know, simply making a requirement that if an officer approaches somebody and asks for the identification, that they're going to have to identify themselves and do so properly and produce some sort of an identification. But there are other parts of this new law that are even more troubling than that part, too. They include a provision that states that besides the $100 fines, that public agencies, government's programs, won't be able to impose any sort of sanction or discipline on anybody as a result of possessing marijuana. And we're very concerned that this not only would affect people such as school-bus drivers, but also police officers and the like.
SIEGEL: You mean, the - say the state troopers couldn't have a rule, no smoking pot, that would be a violation of this law?
Mr. CAPELESS: Yeah, well, it's going to have its greatest impact or most immediate impact on drug-testing programs.
Mr. CAPELESS: Officers come back positive for marijuana, police chiefs wouldn't be able - it would appear from this that they wouldn't be able to take any disciplinary action against them and wouldn't even be able to take into consideration in deciding whether or not to allow them to continue to have a license to carry a firearm and keep their job.
SIEGEL: So, the weekend after next, let's say, a dozen people go out to the Boston Common; each one lights up a joint.
Mr. CAPELESS: Mm-hmm.
SIEGEL: Is it legal?
Mr. CAPELESS: They're not allowed to do it, and an officer who sees them come along is empowered to seize the marijuana that they have because it still is contraband.
SIEGEL: But it's not, come with me to the station house right now; you're under arrest.
Mr. CAPELESS: Oh, no. Oh, no, because it's not criminal. There wouldn't be an arrest, and there wouldn't be, you know, any of that - yeah, they wouldn't be going down to the station, which also involves part of the problem, too, when you talk about identification. It's all going to happen right there on the street, getting that information and making sure it's correct.
SIEGEL: Well, Mr. Capeless, we're interested in seeing what happens after January 2nd. Thanks for talking with us.
Mr. CAPELESS: We wait, not eagerly, but we wait to see what's going to happen.
SIEGEL: That's David Capeless, who is the district attorney for Berkshire County in Massachusetts. But more to the point, he's president of the Massachusetts District Attorneys Association.
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SIEGEL: Painter Fritz Scholder always thought of himself as an artist, but he didn't always think of himself as a Native American. Scholder's story is next on All Things Considered.
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