Not criminal but not legal?

Ballot initiative on city pot rules could leave enforcement options

“They told me to go sign to get some marijuana,” Fred Lucero says as he writes his name on a petition form, his voice lifting to indicate it’s more of a question than a statement.

Marsha Garcia, a young woman who's collecting signatures for a ballot initiative effort called "Reducing Marijuana Penalties," responds with a simple, restrained, "No."

Lucero, a Vietnam War veteran wearing a jean jacket and camouflage hat, is only sort of kidding. "Well, it should, I mean, for people that need it, like me," he says.

"We get a lot of people that kind of joke around about that," Garcia later explains to SFR. "Most people seem to understand that this is so you won't go to jail for a small amount of marijuana. We are telling them this is not legalization."

Garcia and three others canvassed last week for a citywide ballot initiative to lessen the city's penalties for small possession of marijuana.

The effort, spearheaded in late May by Drug Policy Alliance New Mexico and ProgressNow New Mexico, could make history. If it passes muster with city officials who were still reviewing signatures as of press time, it would be Santa Fe's first citizen signature-driven initiative to make a municipal ballot in modern times. Voters would then get to choose whether the city should reduce criminal penalties for possessing an ounce or less of marijuana to a $25 fine and no prison time—essentially no worse than a parking ticket.

Compared to decriminalization trends across the nation, Santa Fe and New Mexico are late to the game. The Washington DC-based National Organization for the Reform of Marijuana Laws (NORML) estimates that at least a third of the country's citizens live in cities or states that have decriminalized pot.

It's also popular; a national poll commissioned by the Pew Research Center earlier this year found 76 percent of respondents opposed 'jail time for possessing small amounts of marijuana.

"If you're a politician and you can't even stomach decriminalization, you're off the statistical charts," says NORML Executive Director Allen St. Pierre.

But New Mexico and Santa Fe still treat small marijuana possession as a criminal offense. It's the potential of that criminal record that decriminalization proponents say hurts people the most.

State Rep. Antonio "Moe" Maestas, D-Bernalillo, periodically defends people charged with minor marijuana crimes in his private law practice. He says he's most frustrated that the federal government, and in turn New Mexico, doesn't distinguish a marijuana crime from a crime involving a much harder drug like heroin, cocaine or meth.

"It doesn't go down in the books as a marijuana conviction," Maestas says. "It goes down in the books as a drug conviction and all the connotations that come with it."

Reducing Marijuana Penalties seeks to change that on a citywide basis after recent lack of action in marijuana reform by the state Legislature. Still, questions linger about how effective the effort would be if approved for November's general election ballot and passed into law in Santa Fe and Albuquerque, where canvassers are also organizing for a similar decriminalization ballot effort this fall.

State law defines penalties for possessing less than an ounce of marijuana as a petty misdemeanor that's punishable with a $50-$100 fine and up to 15 days in prison—virtually the same language as what's currently in Santa Fe's existing city ordinance. Even if Santa Fe decriminalizes, the state law remains in place.

Santa Fe Police Department spokeswoman Celina Espinoza says if the ballot initiative passes, Police Chief Eric Garcia would still allow a police officer to choose whether to enforce the city's new relaxed penalties or the state's more rigorous penalties.

This position draws the ire of Santa Fe-based attorney Steven Farber, a longtime member of NORML's legal committee. Farber dismisses leaving the degree of marijuana crime enforcement up to each police officer's discretion as a "cop out."

"The position of the chief of police allows different officers to use different standards and target those they do not like," he says, adding that "minority groups, immigrant groups, young adults and practically anyone who falls in disfavor with a particular officer" would still be at a disadvantage under such a policy.

Last year, Farber sat on Santa Fe's city Charter Review Commission, an appointed body that looked at changing the city's governing document. His proposal to amend the city charter to make marijuana crimes the lowest priority for the city's law enforcement failed to reach a full vote by the commission.

He argues that the issue could be solved if Mayor Javier Gonzales, who supported marijuana legalization during his campaign earlier this year, uses the authority of his office to issue a similar order to the police department.

"There's no reason to wait to implement these reforms," Farber adds.

Gonzales, however, says that he has instructed the police chief to make reducing property crime, domestic violence and drug trade the city's top law enforcement priorities. The chief, he adds, has agreed to these.

"I support decriminalization and believe now, and into the future, that pursuing individuals who possess small amounts of marijuana should be a low-level priority for all of our officers," Gonzales says.

But crimes for small possession occur in Santa Fe often enough. Santa Fe Municipal Judge Ann Yalman says she sees people in her courtroom every week for minor marijuana violations.

The city currently gives first-time offenders a chance to get the misdemeanor off their record. Santa Fe City Prosecutor Krishna Picard offers those ages 25 and under the choice to enroll in a one-day, $50 program sponsored by Millennium Treatment Services, a local drug treatment center. If the marijuana offenders bring a certificate to Yalman's court showing they went to the program, Picard drops the misdemeanor.

"The biggest thing the kids get out of the class is the reality check of how bad a drug conviction is on their record," Picard says.

Second-time offenders aren't so lucky, but Picard says they're rare.

Crystal McDonald, who works as a secretary at the Santa Fe District Attorney's office, signed the decriminalization petition because she personally knows several people who've been charged with small marijuana crimes over the years.

"You'll see a lot of people in jail for the smallest crimes," she says. "The ones that keep repeating are the ones with harsher drugs. It seems like they get more chances and get out faster than the people with marijuana, which doesn't make sense to me."

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