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According to Emily LaGrassa, a spokes woman for the Massachusetts attorney general's office, the municipal law unit provided sample bylaw language at the request of the Executive Office of Public Safety.

The sample language gives three enforcement options for public consumption of marijuana — by criminal indictment, criminal complaint or noncriminal disposition.

'Why bother to do this at all'

ACLU officials argue that it is unnecessary to criminalize the offense, because under Question 2, public users of marijuana can still be fined $100 and lose their stash.

"The real question is why bother to do this at all when there is not a problem of people lighting up in public when they're still subject to a fine," said Sarah Wunsch, staff attorney for the ACLU Foundation of Massachusetts in Boston. "In places where states have decriminalized, this has not been a problem — they have not seen an increase in public use."

"We're not sure that any of this is necessary, unless there is there is some evidence that it has become a problem in a particular community with public use," said Bruce Mirken, director of communications for the Marijuana Policy Project based in Washington, D.C. "But we haven't heard any such reports."

He noted that the voters were clear in saying that "penny ante use" of marijuana should not be a criminal offense.

'Tactic clearly unacceptable'

"Our preference would be for folks to just relax and let the local enforcement play out as the law is written and see if any local adjustment is needed," he said. "If a criminal complaint is going to be used as an aggressive way of cracking down on people, that sort of tactic would be clearly unacceptable. Something like this could be used in a manner that's totally contradictory to what the voters wanted."

In Adams, town attorney Edmund St. John III pointed out the conundrum, and members of the board of selectmen reworded their bylaw on public consumption of marijuana to remove the criminality of the violation.

North Adams Police Commissioner E. John Morocco said he recommended that city council adopt the bylaw including the criminal charges.

"I do not have a problem with making that a criminal offense," he said. "I completely agree with it and I completely disagree with Question 2. Why should it be a criminal offense to drink a beer in public, and not a criminal offense to smoke a joint in public? It doesn't make sense."

The Pittsfield Police Department also forwarded the proposed bylaw to city council.

"My interest is that if it is (being smoked) at a bus stop or a city park where other people might be annoyed or alarmed, the officer would have discretion" to pursue criminal charges against the violator, said Capt. John Mullin, spokesman for the Pittsfield Police Department.

He added that public use of marijuana has not been a problem in Pittsfield.

Since the passage of Question 2, four citations have been issued in Pittsfield for the possession of less than an ounce of marijuana, Mullin said.

Mayor James M. Ruberto favors the bylaw proposed, saying that like the public consumption of alcohol, it should be treated as a criminal offense.

Question 2 proponents urged caution in considering these bylaws.

"If there is a pattern of local police sidestepping (Question 2) and using these local bylaws as a way of doing that, that's a real problem and they could find themselves with some very unhappy constituents," Mirken said.

"The voters wanted it decriminalized," Wunsch said. "And this does seem to be an effort by those who opposed Question 2 to continue to treat possession of small amounts of marijuana as a big problem when it isn't. What's the need? Why rush into it? These towns have much more important things to deal with right now."
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