When the Charlottesville City Council let die a proposed ordinance that would have officially eliminated jail time for first-time simple possession of marijuana in the city last week, it signaled the end of a recent push by would-be reformers to write into law the city’s relatively lenient pot policy. But legal observers say it’s likely not the end of the argument.
Charlottesville attorney Jeff Fogel has long advocated for local measures that would scale back a local law enforcement response to pot. He originally suggested possession of under half an ounce be made a Class 4 misdemeanor—carrying only a $250 fine, as opposed to the state punishment of a $500 fine and up to 30 days in jail —for first and any subsequent offenses.
But under last week’s proposal, anything beyond a first offense would be a Class 1 misdemeanor, which carries the possibility of up to a year in jail. That defeats the purpose of the reform, said Fogel.
“The question was, ‘Was it appropriate to send anybody to prison?’” he said. “And it’s not.”
Others who were more cautious about crafting a local possession ordinance objected on different grounds.
“Generally, it’s not a good thing for a community to carve itself out as an exception to the application of otherwise enforced state law,” said Charlottesville Commonwealth’s Attorney Dave Chapman. Prosecution of simple possession isn’t a high priority here, he said, and those charged can usually leave court without a conviction. Changing the rules might mean lighter penalties locally, but there could ultimately be more convictions—and some penalties, like loss of driving privileges, would be unavoidable under state law.
Ed McCann, executive director of Virginia’s chapter of the National Organization for the Reform of Marijuana Laws, argued that the city should codify its views.
“We understand that Charlottesville does not generally jail its citizens for marijuana, but we are one police chief away from [doing] that,” he said at last week’s meeting.
“I don’t decide who goes to jail,” said Charlottesville Police Chief Tim Longo—that’s up to the judge. Department policy allows officers to issue citations instead of making arrests for possession, Longo said, “and I can’t imagine another police chief coming in and having the perceived authority to change that.”
Richard Bonnie sees the debate over institutionalizing leniency as an example of changing American attitudes toward marijuana. Bonnie, a UVA law professor, was associate director of the Nixon-era National Commission on Marijuana and Drug Abuse, which recommended legalization in 1972. He thinks the conversation is coming full circle.
“It may not be unreasonable to think that the General Assembly may be interested in reducing the penalties,” Bonnie said. Even hard-right Attorney General Ken Cuccinelli has indicated he’s not vehemently opposed to relaxing marijuana laws. At a meeting of young Republicans at UVA earlier this month, he said his opinions were “evolving,” and called recent state referendums legalizing pot interesting federalist experiments.
“I don’t think that there’s any question but that attitudes are shifting,” said Jeff Fogel—though maybe not among local elected officials. The most recent measure didn’t even make it to a vote. Fogel said he’ll keep pushing for change, but for now, “I don’t know who to push with.”