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The Greening of Massachusetts

Pushing Decriminalization in the Bay State

By Joseph L. Contreras and Marc H. Meyer

The possession of small amounts of marijuana has now been decriminalized in nine states, ranging from Alaska to Maine to California to Mississippi--the most recent. And the climate of opinion suggests that the grass may be growing greener in the Bay State within the next few years, if only in the figurative sense. Massachusetts House Bill 4914 would reduce a marijuana possession charge to the status of an ordinary traffic fine; and for the first time in history, a decriminalization bill stands a good chance of being reported out favorably from the Joint Committee on the Judiciary sometime in late June. The following article retraces the road traveled by HB-4914 over the past year or so, identifying some of the individuals who figured prominently in the sequence of events that brought the bill to the portals of the House and Senate Chambers. The article concludes with an analysis of the bill's actual chances in the legislature this year, discussing the various reasons why the bill may or may not pass

Three minutes after you've met the guy, you get the feeling that Joe Oteri could worm his way under anybody's skin. His style adds a new dimension to the meaning of glibness, being the kind of fellow who can readily inflect a tone of mock anger when an interviewer insists on calling him Mr. Oteri: "Call me Joe for chrissakes. Everyone calls me Joe, except my daughter. She calls me asshole." And you're already giggling, if only inwardly. A burly native of South Boston who has earned a name as one of the best narcotics lawyers in the business, Oteri began involving himself in drug law liberalization efforts and drug-related test cases almost 20 years ago when the job was not only unpopular but also dangerous. His downtown Boston office sums up his success at one glance: the sauna bath, the mirror-lined universal gym and the fully equipped kitchen, not to mention the receptionist. A member of the board of directors of the National Organization for Reform of Marijuana Laws (NORML) in Washington, Oteri took over the leadership of the decriminalization campaign in Massachusetts last December.

"He was the one who designed the whole attack along with the other people at NORML," State Rep. Michael F. Flaherty said. As the House chairman of the Judiciary Committee, where successive "decrim" bills have met defeat for the last five years running, Flaherty has been targeted for intensive lobbying by Oteri's office. The fact that Flaherty and Oteri are lifelong friends dating back from their childhoods in Southie has partially influenced Oteri's decision to focus on Flaherty.

Sensing that the time was ripe for action in the Bay State last winter, Oteri assumed responsibility for directing NORML's lobbying efforts on Beacon Hill. The decriminalization issue had benefited from a recent Oteri test case on cocaine. In a Roxbury Court last fall, Judge Elwood McKinney ruled that cocaine prohibition in its present form was unconstitutional. According to some observes, the cocaine controversy has drawn attention away from decriminalization, giving both politicians and drug-oriented interest groups more room in which to maneuver.

James W. Lawson, co-coordinator of the Massachusetts branch of NORML, cites a more general sentiment among Bay State residents when he says: "People are coming to the conclusion that not just sleezy people smoke grass these days. Even in very conservative districts, they are coming to the conclusion that they don't want their kids going through the trauma of a court appearance and having something on their records over a lousy joint."

Oteri pursued a pragmatic strategy: stress the savings in governmental expenditures that decriminalization provides, focusing on key legislators who have opposed the bill in the past. The nationally famous trial lawyer placed a priority on convincing opposition figures that support of HR-4914 would not bring defeat at re-election time. To prove his point, Oteri drew upon NORML monies to conduct a poll of Flaherty's own district in South Boston to gauge the extent of popular support for decriminalization in a reputedly conservative district. Harvard Business School students undertook the task of actually surveying these constituents and the 73 per cent figure in favor of decriminalization has produced a predictable effect in the State House. The political savvy of the poll was obvious since it was directed at perhaps the single representative who has most effectively hamstrung the progress of the bill in previous years. The statewide opinion poll that appeared in Monday's Boston Globe confirmed the findings of the NORML survey--no fewer than 1034 respondents endorsed decriminalization, while 143 students and readers kept their thumbs turned down.

The Oteri game plan now proceeded to the stage of lining up witnesses to testify before the Judiciary Committee hearings held several week ago. Cognizant that most of the committee members were trial lawyers by training. Oteri sought testimony that would underline two recurring themes: the present penalties for marijuana possession served both to bog down courts and tie up valuable law enforcement manpower on the one hand, and to eat up unnecessary amounts of the tax-payers dollars.

The current state law sets down a maximum penalty of a six-month jail sentence, a mandatory six-month probation for first offenders, and a $500 fine for simple possession of marijuana. Under HB-4914. offenders would be liable for a maximum $50 fine, but no criminal record would haunt them in future years.

The decriminalization bill is the nominal brainchild of State Reps. John E. Murphy Jr. and Francis W. Hatch Jr. '46. While similar versions of the bill have been submitted to the legislature in the past, Hatch readily acknowledges the debt that his co-sponsor and he owe to the pioneering Oregon law. "We swiped the traffic ticket approach," Hatsh says, adding "it really doesn't hurt to plagiarize. If another state has an intelligent approach to the problem, you have all the preliminary work done. If you have a roughly similar bill, the experience of that state is directly applicable."

Enter left Pat Horton, the state district attorney from Oregon whose testimony rocked the Judiciary Committee hearing room by all accounts, with one exception. The legislators could identify with Horton: as Lawson said, "You'll never see a straighter, tougher, more middle-class sort of guy, and that is why he was so effective." Murphy adds, "Horton testified to the following: every major candidate in last year's state elections supported decriminalization in Oregon," Murphy says. "He was a strong law-and-order man, but he testified that this bill now let him do the job the people of Oregon elected him for."

Flaherty echoes Lawson and Murphy on the subject of Pat Horton, adding his own emphasis. "The biggest case for decriminalization was made by the D.A. from Oregon," Flaherty says. Publicly a fence-straddler at the present time, Flaherty is considered a closet supporter of the bill by both Murphy and Oteri, and Murphy includes the South Boston representative among the fourteen members on the 21-man panel who will probably vote for a favorable report.

The one exception on the committee appears in the person of State Rep. Charles R. Doyle, whose conspicuous silence on Pat Horton stems from the fact that he did not attend any of the committee hearings where Horton and others took the oath. Incidentally, Doyle says he is "leaning toward keeping the criminal penalties on at this time."

The testimony of Dr. Dana L. Farnsworth, Oliver Professor of Hygiene Emeritus, was designed to affect the politicians in another way. Farnsworth had changed positions on decriminalization completely. Having testified against marijuana for the prosecution in a 1967 test case in Boston, Farnsworth vice-chaired the National Commission on Marijuana and Drug Abuse established during the Nixon administration. A blue-ribbon group of establishment notables, the commission spent millions of dollars in extensive analysis and published its findings in March 1972 in Marijuana: Signal of Misunderstanding. It was a book that former President Nixon did not care to read. Oteri notes, "Farnsworth was a man who turned 180 degrees in his position and had the guts to admit it publicly; the reps had to respect that."

To bolster his case, Murphy can marshal some figures of his own: some 50 per cent of all Massachusetts drug busts in 1974 were for simple possession and 90 per cent of all marijuana cases involved possession of one ounce or less. Court costs for marijuana arrests totaled $10-12 million that year, the most recent time period for which statistics are available.

State Sen. Alan D. Sisitsky expressed confidence last week that the Judiciary Committee would award decriminalization its seal of approval this year. The Senate chairman of the joint panel, Sisitsky observed, "when the two chairmen agree on an issue, there is little argument about what happens after that." Disagreement does crop up when the talk turns to the bill's chances on the floor this year, however.

Conventionally, a favorable report from Judiciary guarantees a bill smooth sailing once it reaches the floor. Marijuana is no conventional issue however. "There are certain bills that are so volatile that a favorable report would not insure passage," Hatch says, noting that "this bill is not a bottle bill."

Sisitsky is uncertain about the future of decriminalization in the 1977 session of the Massachusetts legislature, but feels that the unprecedented Judiciary Committee action may be the deciding factor. "The fact that the House chairman (Flaherty), regarded as a conservative, and the Senate chairman, considered a liberal, come out the same way will mean something," he says. Oteri believes the bill has a 50-50 chance, but it is co-sponsor Murphy who sounds the most pessimistic note of all. Asked for a candid assessment of the bill's chances, Murphy says, "I would love to say yes, it will pass this year, but my feeling is this is not the year for political reasons, rather than the issue's substance."

For starters, the anticipated role to be played by House Speaker Thomas W. McGee will not help matters much. One legislator who asked not to be identified said, "My hunch is that McGee is irrevocably against decriminalization," adding, "I just don't think that you've got the groundswell on the floor this year."

Special circumstances also will affect the course of the bill. "Two young reps who might have even tried pot when they were younger have conveyed their concern to me," Murphy says. "They're 25 or 26, and although they personally support the bill, they're afraid they might get killed in their district for supporting it." With the imminent redistricting that will pare the 240-member lower chamber down to 160 representatives, House legislators have never been so conscious of treading lightly on the sore spots of some constituents. The House is clearly the iceberg which might sink the measure.

While most legislators refuse to speculate on Gov. Michael Dukakis's position on any marijuana bill that emerges from the legislature, the governor's press secretary, Alan Raymond, spells out the executive's line: "The governor has always said that he would be willing to sign a marijuana decriminalization bill if one were to come to his desk. However, he does not plan any special lobbying effort on behalf of the decriminalization bill in the legislature." The statement is still another confirmation of the consensus that the House will be the ultimate crucible for HB-4914.

And where do the proponents of decriminalization go if the bill does run aground on the floor this year? Why, to the people of course. "I have hidden in the wings a non-binding referendum," Murphy says, "and I'd like to get it onto a statewide ballot next year because, after all, a non-binding referendum is the best poll there is."

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