Wednesday, November 28, 2007

Waukesha county "decriminalizes" marijuana possession? Not quite.

The Milwaukee Journal-Sentinel proclaimed that the Waukesha County Board "decriminalized" first offense possession of marijuana by adopting an ordinance which would provide a civil forfeiture not to exceed $1,000.

The newspaper -- as is so often the case when "hit and run" reporters try to report on legal developments -- got it wrong.

The county board approved an ordinance that would allow first offense marijuana possession to be ticketed as a civil offense -- such as speeding -- but adopting the ordinance does not mandate civil prosecution.

The Waukesha County District Attorney has the sole discretion whether to charge marijuana possession as a crime or by way of a municipal ordinance citation. The new ordinance will give the prosecutor another tool. That's all.

County boards in Wisconsin have limited legislative authority. A county board may adopt certain state laws as parallel county ordinances -- such as possession of marijuana, disorderly conduct, retail theft, etc. -- and ordinance prosecutions are civil offenses. But to decriminalize possession of marijuana overall would require action by the state legislature and, because of federal mandates, congress.

Frankly, making first offense possession of marijuana a county ordinance violation is an option that should be used sparingly. Here's why.

The only thing that can be done in an ordinance case is impose a monetary penalty. That's all. So, if someone has a budding drug problem, making them fork over, say, $186 (that's a $50 forfeiture plus court costs) does nothing to address that issue.

So many adult offenders today who have alcohol and/or other drug problems lament that they never had an opportunity for treatment. Rather than collect a token monetary penalty, first offenders (and usually "first offender" really means it's the first time the defendant has been caught) should be compelled to participate in treatment.

If the treatment works, great. If not -- and we all know that you can lead a horse to water but can't make it drink -- we will at least know that the option was available.

Plus, in Wisconsin, a person accused of a misdemeanor who is under the age of 21 at the time of the offense has a chance to have their conviction expunged (sealed) if he or she successfully completes the sentence. Persons convicted of ordinance violations have a rude awakening because that conviction -- even though not a criminal one -- remains of record forever.

Society is better served by steering "first offenders" into treatment, particularly when young offenders have an opportunity to get help and also have their convictions expunged. Just giving them a ticket, collecting a few bucks and walking away from the problem is a farce than benefits nobody.

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