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VOL. 40 | NO. 40 | Friday, September 30, 2016

Legislator: Metro marijuana law has some real problems

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State Rep. William Lamberth balks at the notion Memphis and Nashville are softening the punishment for simple pot possession.

Lamberth, a Republican and former assistant district attorney from Cottontown in Sumner County, is ready to punish the cities, too, by passing legislation in 2017 to hold back state transportation funds – $119 million in Davidson County – for municipal governments whose penalties conflict with state law.

Nashville’s new ordinance would let police issue citations for possession of a half-ounce of pot leading to a $50 fine or 10 hours of community instead of a Class A misdemeanor punishable by a year in jail or $2,500 fine. An attorney general’s opinion is being sought on the Nashville and Memphis ordinances, he says. (Memphis’ ordinance hasn’t received final approval.)

Such ordinances have “massive equal protection problems,” Lamberth says.

Lamberth

“What they’ve done is not decriminalization. It is just leaving it up to the whim of an officer on who gets a city cite and who gets arrested and who faces up to 11 months and 29 days in jail,” Lamberth explains.

He contends action by the state Legislature earlier this year was real decriminalization in that it took third or subsequent simple drug possessions and made them misdemeanors instead of a felony, keeping people continually caught with small amounts of drugs from going to prison.

Nashville’s law “sends a horrible message” to people by making them think the council decriminalized simple possession when all it did was allow police to decide.

“They realized they couldn’t change the state law, and I think they wanted to put something on the books, so they could pat themselves on the back and say we did decriminalization,” Lamberth adds.

“They chose to give officers this unfettered discretion. I think it was all about politics and very little about policy.”

Lamberth, whose legislation toughening penalties in Tennessee’s underage DUI law led to a special session to keep $60 million in federal road funds, contends the cities’ ordinance will violate the U.S. Constitution’s Equal Protection Clause, as well as state law.

“In Tennessee, we treat everybody the same under the law,” he says. “It shouldn’t matter what you look like, what color your skin is, how much change you’ve got in your pocket or how polite or impolite you are to the officer. The law should apply to everyone the same.”

Lamberth laughs at the idea he is hard on pot smokers while accepting thousands of dollars from the alcohol, pharmaceutical and bail-bond industries.

Some of his donors in the past year include Jack Daniel’s PAC, $5,000; Merck Sharp & Dohme, $500; Tennessee Pharmacists PAC, $1,000; Anheuser Busch, $1,000; Bail Bonds Inc., $1,000; Tennessee Bail Recovery & Monitoring, $1,500; Tennessee Wine & Spirits Wholesalers, $2,000 and the Wholesalers Association, $1,000.

The people in those organizations have varying ideas on whether marijuana should be legal or illegal, he says, contending their donations have “no correlation” with a stance he takes on any issue. Furthermore, he adds, the idea that contributions affect policy decisions at the Capitol is “both insulting and inaccurate.”

“Nobody else is in my ear except for attorneys and judges that I’ve talked to and even advocates for legalization that are very concerned about what Nashville has done,” Lamberth says. He predicts the number of simple possession charges in Nashville will stay the same in the coming weeks.

The other side

Long before Lamberth made his pronouncements, the Legislature’s Black Caucus backed the Memphis and Nashville ordinances, saying they complement its efforts to reform criminal justice statewide.

“Statistics have shown that the impact of these low-level drug offenses hits harder on poor and minority communities, saddling many with crippling criminal records and lessening their chances of employment, housing and other areas of life,” explains Rep. Brenda Gilmore, D-Nashville, in a statement.

The cost of enforcement and incarceration is high for local and state entities, taking law enforcement’s attention away from more serious offenses and bogging down courts with minor infractions, Gilmore points out.

Letters to Memphis and Nashville councils also point out the Black Caucus is focused on “decriminalization,” not making pot legal in Tennessee, and adds the caucus will continue its fight “to ease the burden on underserved communities.”

While some Black Caucus members are clear in their denunciation of state marijuana laws and their long-term impact on people’s records, Rep. Raumesh Akbari says she believes the work is far from over once the Memphis and Nashville ordinances take effect.

She may even see things similarly as Lamberth.

Akbari, a Memphis Democrat, calls the city ordinances a “good step in the right direction,” but she wants “collaboration” with law enforcement to ensure more structure is involved in enforcement.

“I think any time you give an individual discretion that they can bring in their own implicit bias unintentionally,” she says, of the ordinances. “We want to make sure it’s equally applied.”

A suspect’s race, economic status and other factors could come into play when officers are given “absolute discretion” in applying the rules, she adds.

Unlike Lamberth, though, Akbari hopes the Legislature will address the local ordinances in “a positive way,” putting together a statewide policy for all cities and counties to follow.

Council views

Metro Councilman Russ Pulley, a former FBI agent whose views have softened toward marijuana and criminal defendants over the last two decades, says Lamberth’s line of thinking is “ridiculous.”

Pulley

“He knows discretionary justice is a way of life out there. He dealt with that the entire time he was a prosecutor,” Pulley says. “We always have, as a law enforcement agency, the ability to warrant an arrest or summons, so many of the things Lamberth has said is stupid and is pandering, and they can be picked to pieces.”

Pulley points out Lamberth’s DUI bill nearly cost Tennessee $60 million, in addition to forcing the governor to call a special session to bring the new law in line with federal “zero-tolerance” requirements for the blood-alcohol content of underage drivers.

Nashville’s ordinance is strictly civil while Tennessee’s marijuana laws are criminal measures, and Pulley notes the Legislature hasn’t gotten involved with city ordinances dealing with prostitution, littering or careless driving. Lamberth made numerous comments about the measure to media but hasn’t contacted him or Metro Councilman Dave Rosenberg, the measure’s sponsor.

As far as enforcement, that’s a policy question for police, Pulley says. If it were up to him, simple possession citations should be handed out when that’s the only violation. If someone is caught carrying a weapon illegally and assaulting an officer, while also possessing pot, it could be made a criminal charge, he says.

Likewise, Memphis City Councilman Berlin Boyd, who is sponsoring that city’s marijuana ordinance, takes issue with Lamberth’s stance.

He points out Lamberth’s DUI bill was illegal in the eyes of the federal government. He also notes about 50 percent of state highway funding to local government comes from the federal government.

“I doubt seriously that legally he could withhold, blackmail us, and say he’s going to withhold funds from Memphis and Nashville,” Boyd says.

The Memphis councilman adds Lamberth contradicts himself because he also proposed legislation giving police officers discretion to have a person’s car towed based on insurance.

Boyd’s motive is not to take a first step toward legalization, either, but to keep Memphis’ residents, a majority of them poor and black, from having court fees, fines and jail time heaped on them for smoking pot.

“They’re getting these misdemeanor citations, they’re getting black eyes on their record, and they can’t become productive citizens,” he says.

Fining people, revoking their driver’s licenses and locking them up for minor drug offenses creates a cycle of repeat offenders, he explains. Simple possession of marijuana also introduces young people to the justice system at an early age, desensitizing them by giving them the attitude that it’s no big deal to serve time.

“What I’m saying is it saves on taxpayers’ dollars and it’s actually giving people an opportunity to get their lives on the right track,” Boyd says.

The analysis

Whether we’ll ever see the day of pot commercials equaling the glitz and glamour of beer promos is uncertain. But it’s high time Tennessee legislators started looking at the rest of the country and recognizing what’s happening within the Volunteer State’s own borders.

We have thousands of people dying every year in Tennessee from opioids, heroin, meth and crack addiction, along with alcoholism and its effects on the body and roadways. When a doctor can prescribe 30 pain pills for a surgery requiring maybe three or four pills, that’s a serious problem because those highly addictive drugs are winding up in the hands of kids or on the street.

People get addicted easily, but they can’t afford to buy them on the street, so they go for heroin, which is cheaper but deadlier.

Meanwhile, we have one elected official – the Rutherford County sheriff – accused of drinking and taking a sleeping pill on Labor Day and assaulting his wife. If true, he’s no different than a lot of people who spend holidays getting soused.

Lamberth says he’s no “stick in the mud” but simply adds he believes the state is setting itself up for a bigger problem. Considering the unequal administration of justice many perceive nationwide, he could be right. But in some eyes, he’s coming off as heavy-handed and hypocritical.

Pot is not the problem. Instead, it’s a political bugaboo, and in a red state, voting to legalize it would be political suicide, even though Republicans probably smoke just as much as Democrats.

Pulley, however, says besides the states that have legalized or made medical marijuana legal, nine other states have some form of legalization on their November ballots.

“There’s a lot of movement in this direction,” he says.

Akbari also points out, “It certainly is a direction I did not think we would be moving in this quickly.”

Even Lamberth acknowledges he’s willing to take a comprehensive look at Tennessee’s system of crime and punishment.

And though he and other conservative lawmakers might not say it, momentum is building, and eventually Tennessee legislators will recognize what the rest of the nation knows: Marijuana is the least of our worries.

Sam Stockard can be reached at sstockard44@gmail.com.

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