Dazed & Confused by the SJC – Possession vs. Possession with Intent to Distribute

I agree there is a seeming disconnect between the passage of a 2008 referendum by Massachusetts voters in 2008 that made possessing less than an ounce of marijuana a civil violation and yesterday’s opinion by the Massachusetts Supreme Judicial Court (SJC) in Commonwealth v. Keefner, in which the SJC ruled that "the crime of possession with intent to distribute applies to any amount of marijuana" [emphasis added]. Nonetheless, I also agree with the Court that there is no inherent inconsistency in them so ruling. The fact is with drug crimes, possession and possession with intent to distribute are two separate crimes (notwithstanding one being a lesser-included of the other), with the latter requiring an additional element of proof regarding an intent to distribute, which must be established beyond a reasonable doubt. Unless or until the Legislature or voters agree to decriminalize the latter offense, possession of marijuana with intent to distribute will remain not just a crime in the Commonwealth, but also a relatively serious one with a potential maximum penalty of up to two years in jail. This last is what is really most instructive and cautionary about the High Court’s decision yesterday. While the SJC declined to resolve the thorny issue of whether or not simply sharing a joint with another without an exchange of money does or does not constitute the actual crime of distribution (hint; technically it still does) , it is important for users, particularly younger ones who, because of the passage of the straight possession referendum, now wrongly believe a marijuana crime of any nature or degree will not be prosecuted in Massachusetts, learn from the ruling. Not only can and will they be prosecuted, but in some cases, such as school zone violations, they will also be punished harshly via imposition of mandatory minimum jail sentences if convicted.

The likelihood of renewed public advocacy to now try to conform the law on both possession and distribution with arrests dealing with small amounts such as the 6 grams (less than ¼ of an ounce) at issue in Keefner may not be the only residual fall-out of the yesterday’s SJC decision. For years, narcotics prosecutors have been presenting testimony by police officers and state troopers to grand and petit juries based solely on their "expert" opinions on the amount(s) of drugs involved in individual cases in order to try to establish the requisite element of intent to distribute (especially in more serious cases involving class A, B and C controlled substances) when other related evidence may be lacking. In other words, it is routine for a so-called "police-expert" to offer an opinion in a relatively weak cocaine trafficking case that, say 18 grams of cocaine, is inconsistent with personal use and thus is de facto proof of the intent to distribute necessary to support a conviction because no single user would be using "that much" for himself. Leaving behind the inherent fiction in such a statement, at least as it relates to physiological differences and distinct personal use histories unique to each alleged offender, doesn’t, and shouldn’t, the SJC’s decision in Keefne r (albeit from an opposite perspective) now call into question any/all such testimony when proffered by the State?

As a criminal defense attorney who often handles serious trafficking cases involving cocaine and heroin, as well as distribution cases involving oxycontin and ecstasy, I can confidently say I will now be looking for ways to use yesterday’s decision to challenge such often-unchallenged (and specious) testimony. Call it the law of unintended consequences, or call it a legal opportunity. Either way, despite the soundness of the SJC’s ruling, Keefner presents a clear example of how sometimes a court of law’s clarification about one principle leads to confusion over another.

If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828