Distribution of Less Than One Ounce of Marijuana Is Still a Crime In Massachusetts

In 2008, Massachusetts voters changed the law concerning marijuana, decriminalizing possession of less than one ounce. They did not go so far as to legalize the former crime, however, as possession of a small quantity still carries a potential civil fine.

In the spring of 2010, Shawn Keefner was arrested by police in Great Barrington, Massachusetts and charged with possession of marijuana with intent to distribute. The police had found him sitting on a porch with friends, appearing to pass around a "joint" of marijuana.

They searched him and found a bag of marijuana and a cell phone. The phone allegedly contained text messages indicating that he had "customers" interested in purchasing marijuana.

In court, Keefner's defense attorney argued that it was improper to charge him with criminal distribution because possession of the amount of "pot" that Keefner had was no longer a crime. He buttressed that argument with the lack of evidence that Keefner had distributed any marijuana for money. He prevailed in the trial court . . . but the Commonwealth appealed.

The SJC Unwilling To Find an Implied Repeal of the "Intent to Distribute" Statute

After hearing the case, the Supreme Judicial Court (S.J.C.) found that while the voters had made specific amendments to the simple possession statute, they did not make any changes to the "possession with intent to distribute" statute.

The S.J.C. explained that in situations where one statute is changed and another similar statute is left unchanged, a court must find that the legislature's intent was to leave the unaltered statute unaffected by the changes. Absent any specific language to the contrary, the unaltered statute will stand as before.

In this case, therefore, the Court held since the distribution statute remained unchanged by Massachusetts voters, the distribution charge against Keefner could go forward. In so doing, it reversed the trial court.

Intriguing Footnote

While the ruling in the case was not surprising, in light of the common-law rule regarding the interpretation of statutes, there was an interesting footnote in the opinion. In Footnote #4, the Court suggested that it is an open question whether passing around a joint will qualify as "distribution" in the future. "We leave for another day . . . the extent of all acts that are proscribed by the term "distribute" under § 32C ( a) in view of the enactment of G.L. c. 94C, § 32L," the Court wrote.

Decriminalization Could Lead to a More Severe Criminal Sentence

The Court expanded on its discussion in the footnote by stating that if the passing around of a joint constituted criminal "distribution," that could lead to the incongruent result of decriminalization of possession leading to suspect being charged with the more severe offense of distribution.

The penalties for distribution could subject a defendant to several years in prison (depending on his prior record), as opposed to the maximum six-month sentence for simple possession. There is also the potential school-zone enhancement that exists for distribution, but not for simple possession.

Thus, while the Court reserved this issue for a later date, it appears to have signaled that sharing a small amount of marijuana may not subject a person to criminal penalties in the future. It seems likely that the right case to decide this issue will appear on the S.J.C.'s docket soon.