Bud Lite

Lower penalties for marijuana are a hit in the city limits

By many accounts, even before last week’s vote to decriminalize marijuana in Santa Fe, possessing a small amount of pot in the city wasn’t a very risky venture.

But exceptions always arise, and Caitlyn recently found herself among them when she returned home one evening in June. After a lazy day of watching movies and "doing girlfriend things" at her friend's house, Caitlyn, 28, pulled into her apartment complex around 11 on a Friday night.

Two police officers, who say they noticed a burned-out headlight on her car, stopped behind her. They quickly turned on their red and blue lights and approached the passenger side of Caitlyn's car. Officer Trace "Sage" Evridge, a 21-year-old who graduated from police academy the month before, asked for her license and registration.

"I pull out my insurance and registration from my glove box, but I had to get my license out of my wallet in my purse," she says. "At this time it dawns on me that I have a small container in my purse with a very small amount of pot in it."

Specifically, Caitlyn was holding a half-gram of marijuana in a glass jar. For perspective's sake, that's equal to about the size of a 25-cent coin. Though this is too small an amount to buy from certified medical cannabis producers in the state, the street price for a half a gram of average quality marijuana is about $5.

Evridge asked Caitlyn what she had in the jar. "Feeling like honesty is the best policy and instead of trying to deny what I have, I pull the container out," she says.

Caitlyn, a brunette with wide eyes and a round face, doesn't exactly come off as a criminal. During the day, she works as a wellness practitioner. She asked that SFR not reveal her last name because news of her arrest might lead to workplace stigma.

Though she was cooperating with the officers, Evridge made her step out of her car, then slapped a pair of handcuffs on her wrists. He explained to her that possessing marijuana was against the law. As her husband came outside to see what the commotion was all about, Caitlyn says she begged the cops to consider the triviality of her crime.

"I tell them this has to be a complete waste of their evening, as there are other people who might actually be hurting or endangering others to focus on," she says.

Instead, Evridge and his field trainer Officer Celestino Lopez put Caitlyn in the backseat of their cop car and took her to the Santa Fe County jail on a $500 bond.

When she arrived at the jail, Caitlyn says she shared a crowded cell with other women, including one passed out in the corner and another who paced back and forth "saying she's gotta get out before she starts detoxing in the cell." Caitlyn says she didn't get to leave jail until 4 am, after her husband was able to scrounge together the bond money.

Since then, she's been to Municipal Court multiple times. She'll likely be doing community service soon to get the misdemeanor charge off her record. Her arrest is an example of why thousands of Santa Fe residents recently joined a petition drive that aimed to reduce the social and economic costs of small marijuana charges. At its Aug. 27 meeting, Santa Fe City Council surprised many when it voted to change the penalties rather than put the question up for a November vote as petition organizers had requested.

"I think that the War on Drugs has been a colossal failure, and that it's high time we nipped it in the bud tonight," was Councilor Patti Bushee's pun-riddled preface to her vote.

Santa Fe city law previously defined marijuana penalties the same as the state: Small possession was a criminal misdemeanor punishable with a $50-$100 fine and up to 15 days in prison for the first offense. The new ordinance, with an as-of-yet-undetermined effective date, reduces that penalty from a petty misdemeanor to a civil infraction punishable by a $25 fee, similar to a parking ticket. The same applies for marijuana-related paraphernalia.

But a conflict persists. State law still defines penalties for less than an ounce as a petty misdemeanor, virtually the same language as Santa Fe's former ordinance. The contradictory penalties give Santa Fe city police the opportunity to enforce either the regressed city law or the tougher state law.

Though some speculate that the new policy leaves the city open to a challenge from the state, and Gov. Susana Martinez has made public statements voicing her displeasure with the idea, Santa Fe Assistant City Attorney Alfred Walker says the state can't force a police officer's discretion for a particular crime. When police pull people over for speeding in their cars, for example, they can decide whether to issue a ticket or a warning based on what they feel is appropriate in the situation.

"It's all going to come down to what the officers on the street do," Walker says.

That, some say, could still lead to problems for potheads.

Santa Fe defense attorney Dan Marlowe, who often represents people with drug convictions in court, says he's wary about police officers trying to enforce the tougher state law within the city limits.

"That's probably something that shouldn't be happening," Marlowe says. "If the city ordinance says it's OK, they should leave it that way."

Marijuana charges are frequent in the City Different. From July 2013 through this August, at least 205 of the city's 778 drug-related charges were for marijuana possession.

While it's hard to swallow the line that possession arrests are wrecking homes and bank accounts, most people charged with small marijuana crimes make multiple trips to court to deal with their charges.

Angel Watson, a 22-year-old who was recently busted with less than half a gram of pot, says his recent court trips took two hours each. Santa Fe Municipal Judge Ann Yalman adds that she sees people coming into her courtroom for minor marijuana violations every week.

Marlowe and others say those appearances are time vampires.

"It you're out there smoking pot," he says, "that doesn't mean you should need to jump through all the hoops that a judge wants you to jump through in order to get it off your record."

A problem also lies with the amount of resources dedicated to enforcing small pot penalties. According to Drug Policy Alliance New Mexico, a nonprofit that advocates for reforming illegal drug penalties and that spearheaded the recent Santa Fe and Albuquerque decriminalization efforts, more than one-third of all arrests in the state were related to marijuana in 2010, beating out burglaries and vandalism. The organization also estimates that these marijuana charges use more than $5 million in public money across New Mexico each year.

"We're threatening our public coffers and threatening our public safety in a city where our property crime is higher than the national average of a town of this size," says Emily Kaltenbach, the group's director.

Advocates also charge that the policy jeopardizes families and ruins people's lives, but cases like those appear to be few and far between in Santa Fe. A look at how local cops handled marijuana violations over the past three months shows that most of the time, officers seize the person's pot and issue a misdemeanor citation and a court date without an arrest.

That's what happened to Josue, a 25-year-old Santa Fean who also did not want his last name printed for this story over worry that it would put his job in customer service at risk. Josue was pulled over in May for talking on his cell phone while driving. When the officer approached his car, he smelled pot and saw an apple "transformed into a marijuana pipe" in the car's center cup holder, the police report reads.


The officer told Josue to step outside his car, where he handcuffed him and asked permission to search the vehicle. Josue cooperated, and the officer came away with the apple pipe, a metal grinder (used to crush buds into smaller pieces) and 11 grams of pot, or a little less than a half-ounce. Then, he uncuffed Josue and sent him off.

"He gave me a citation," Josue says. "He was like, 'OK, I'm going to give you a warning for the cell phone, but I can't let this go. You're going to have to go to court.'"

When Josue asked if the citation was going to lead to large problems, he says the officer responded by saying, "No, you're probably just going to have to watch a video."

Over the next month, Josue made multiple trips to Municipal Court. Because he was a first-time marijuana offender, the judge assigned him to attend a half-day diversion class taught by an addict. It's part of a program that the city offers through Millennium Treatment Services drug treatment center.

It works like this: People in Josue's situation plead not guilty in Municipal Court in exchange for paying $50 and attending the class. Those who successfully attend the class get the citation dropped from their records.

Krishna Picard, the city prosecutor who works on the program, says the class is aimed at offenders under the age of 25 to give them a "reality check" of the consequences of a marijuana conviction, which is treated just as severely as a conviction for a harder drug like cocaine or heroin. It can include loss of student loans for college and loss of access to public housing.

"It's an incentive to make better choices, so they don't end up [in trouble] with the law again," Picard says.

She adds that she almost never sees the same person reoffend.

Josue says he came from the class with a better understanding of what can be at stake with getting caught with marijuana.

But not everyone responds to the class this way, and few people say possession charges make them eschew pot.

"I think it's bullshit," says Watson, whose most recent bust happened after being pulled over along Rodeo Road and Zafarano Drive for tinted windows and a loud exhaust pipe.

Like Caitlyn, Watson was carrying just a half-gram of marijuana. The officer, who also retrieved a pipe and a grinder from Watson, gave him a citation to appear in Municipal Court and let him go on his way without arrest.

Originally from California, Watson says when he got caught there, police officers would usually just throw away the pot without bothering to cite him because of all the paperwork that would come with it. "We got people here slinging meth, pills, and here we are wasting time on a little bit of weed," Watson says.

City police officers sometimes refer marijuana citations to Santa Fe County Magistrate Court, which, unlike Municipal Court, handles more severe crimes, including felony charges. Santa Fe County Magistrate Judge David Segura, however, says that in his eight years on the bench, he's never sentenced anyone to prison over a marijuana violation.

"I've deferred sentences, I've suspended sentences, but no one has spent a night in jail because of that offense," he says.

In cases of people charged only with a marijuana crime, Segura says he's often deferred the sentence in exchange for something like community service. Still, magistrate judges have the power to suspend a marijuana sentence, which gives offenders an alternative to jail time but keeps the conviction on their records. This, decriminalization proponents say, is dangerous because drug convictions can follow people for the rest of their lives, jeopardizing future employment and more.

Both Segura and SFPD Operations Commander Louis Carlos insist that police officers and judges deal with each case on its own merit. Carlos gives the example of a bar fight. If a person breaks another person's jaw in a fight and the cop who responds to the incident happens to find a gram of pot on him, both crimes will be referred to Magistrate Court based on the more serious nature of the violent crime.

"We're not going to split the case and send one violation to Municipal Court and one to Magistrate Court," he says. "We have to have faith in our officers that they take the totality of the circumstances and decide which venue is proper."

Throughout it all, Carlos maintains that city police have long been treating low-level marijuana crimes as a low priority. He adds that the police reports are reviewed by sergeants, lieutenants and captains to hold officers accountable for their actions on the street. "We review it, we let the whole case speak for itself, then provide some feedback," he says.

Still, Kaltenbach of the Drug Policy Alliance says the fact that incidents of cops cracking down on small marijuana crimes exist, as was the case with Caitlyn, was enough of a reason to put a decriminalization measure on the books. At least once this summer, records show that Santa Fe police responded to a complaint about a city resident using marijuana in his own home. Two cops went to the trouble of showing up to issue him a citation.

"The city says, 'It's our lowest priority.' In one single case it wasn't, and that means something," Kaltenbach says.

Currently, city officials are going through an administrative process to agree on how to best enforce the new law. Once that's decided, Carlos is in charge of relaying the new parameters to the city's 160 police on the streets.

Santa Fe's recent actions to decriminalize come relatively late to the game. The Washington DC-based National Organization for the Reform of Marijuana Laws (NORML) estimates that at least one-third of the country's citizens, or 140 million Americans, live in cities or states that have decriminalized pot.

Some areas do it differently than others. Oregon, which became the first state to decriminalize in 1973, still fines people caught with an ounce of marijuana as much as $1,000. Yet, the hefty fine constitutes as decriminalization because it isn't charged as a criminal penalty but a mere "violation."

NORML defines decriminalization as "no prison time or criminal record for first-time possession of a small amount for personal consumption." Allen St. Pierre, NORML's executive director, tells SFR that decriminalization efforts often begin on smaller levels when state lawmakers are unwilling to act.

"It's usually an organic thing," St. Pierre says. "Usually activists get behind a local initiative because they can't get their governor to move, they can't get their legislature to move. For us it's a mantra: Change the laws where you live first and everything will work out."

One example is the small ski town of Breckenridge, Colo. In 2009, voters in the town passed a measure that stripped all penalties for possessing an ounce or less, effectively legalizing small amounts of marijuana. Advocates like St. Pierre say steps like these were instrumental in Colorado's eventual legalization of pot.

New Mexico, of course, is catching up slowly.

A decriminalization bill in the state Legislature died in Senate committee in 2013 after it passed the state House of Representatives. And earlier this year, state Sen. Gerald Ortiz y Pino, D-Bernalillo, introduced a bill calling for a statewide vote on full-fledged pot legalization. It died quickly in committee.

In light of the inaction at the state level, Kaltenbach and Pat Davis, executive director of ProgressNow New Mexico, helped launch the Reducing Marijuana Penalties initiative of petition drives in Albuquerque and Santa Fe.

Organizers started collecting signatures in both cities at the beginning of the summer. Among the canvassers was Lisa Law, known for her photographs of countercultural icons like Bob Dylan, Lou Reed and the Merry Pranksters in the 1960s. In Santa Fe, Law may be better known for her local activism, which has included big pushes for President Obama's reelection in 2012 and Javier Gonzales' mayoral campaign earlier this year.

Now in her 70s, Law's hippie-era idealism is prevalent in her attire, which on a recent summer day included dark shades, bright bracelets and turquoise-colored slacks. She occasionally smokes marijuana—just a few tokes to help her sleep every now and then—and is quick to point out the unfairness of how the law looks unfavorably on responsible marijuana users and favorably on drunks.

"I go to bars and watch people drink and drink and drink, and I think, 'Oh my God, how can they do that to themselves?'" Law says.

She ended up collecting more than 1,500 signatures for the decriminalization effort.

In mid-August, City Clerk Yolanda Vigil announced that after a few fits and starts, the marijuana campaign had gathered enough signatures to prompt a ballot initiative in Santa Fe. Organizers initially thought they met the threshold in mid-July when they submitted more than 7,000 signatures, but they failed to produce 5,673 that were valid.

Signatures must come from registered voters living within city limits. Finding people who properly fit this demographic proved to be problematic. Organizers didn't meet the city's threshold until submitting 11,000 signatures—twice the amount of valid signatures required.

After all the on-the-ground work over the summer to get the measure on the ballot, Santa Fe City Council's abrupt approval of the measure outright left bittersweet feelings among some of the initiative's organizers. A signature-driven ballot initiative would have been the first of its kind in modern Santa Fe history.

City Council, however, voted narrowly to approve the decriminalization measure on a 5-4 vote amid concerns over the cost of putting the question on the ballot and a potential hurdle with Republican Secretary of State Dianna Duran, who repeatedly expressed doubts that the question was too long to cram on the general election ballot. Other Republican leaders, including the governor, pegged the ballot initiative as a ploy to get more liberals to the polls for statewide elected office contests at the top of the ticket. Attorney General Gary King, challenging the incumbent governor in the race, says the city was within its rights to pass the law.

"I worked personally for seven weeks," Law says. "I told people we were doing it in order to get it on the ballot. We were disappointed, but also very happy that it passed."

Another organizer, Paul Hillman, said he felt that at least 80 percent of the people he talked to when he petitioned were in support of the measure. Hillman, who throughout his time has had a "fabulous corporate career" including stints doing graphic design for both CBS and ABC TV, says he's been smoking pot "consistently" for 47 years. He collected more than 1,000 signatures for the effort.

"I just wanted to see this over with tonight," Hillman said shortly after the vote. "The whole concept was to get it to go to the November election, but there was going to be dirty deeds to stop that, and I think we had to take care of it tonight."

New Mexico still has a long way to go in terms of marijuana reform. A similar ballot initiative process in Albuquerque was rejected by the city clerk, and another attempt to change law enforcement policy in the state's biggest city recently suffered Mayor Richard Berry's veto pen.

Kaltenbach says she expects a statewide decriminalization bill to be introduced during the coming session of the state Legislature early next year. Whether lawmakers have the political will to support such an effort, and who gets the final say from the Fourth Floor, remains to be seen. And until broader reform comes, different laws for different jurisdictions leaves Santa Fe's local rule change largely symbolic.

"In terms of discretion, nothing changes," Carlos says. "We just have another tool."

SFR intern Nick Martinez contributed to this report.

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