ACLU, prosecutors dispute whether sharing marijuana constitutes drug ‘distribution’

By Martin Finucane, Globe Staff

Civil liberties activists today challenged prosecutors’ arguments that sharing a small amount of marijuana among friends constitutes drug “distribution.”

“The Commonwealth is simply wrong to argue that sharing marijuana constitutes criminal distribution,” Matthew R. Segal, legal director for the ACLU of Massachusetts, said in a statement. “More fundamentally, the Commonwealth’s argument contradicts the will of the voters who approved marijuana decriminalization in 2008. The voters sought to limit marijuana prosecutions, not to invite creative ways for the Commonwealth to increase them.”

The activists warned that someone convicted of distributing marijuana could face up to 2 years in jail for the offense. And they suggested that anyone who shares a marijuana cigarette could be deemed a distributor.

The 2008 ballot referendum decriminalized possession of less than one ounce of marijuana.

Cape and Islands District Attorney Michael O’Keefe, vice president of the Massachusetts District Attorneys Association, defended such distribution prosecutions, saying sharing marijuana remains illegal.

He said the sharing constituted drug distribution, even if no money changed hands. “The law is still the law,” he said.

He also saw activists’ criticisms as “a kind of incremental attempt to water the law down.”

“It’s the slow erosion of our drug laws,” said O’Keefe. “If that’s the way society wants to go, then let’s have an honest debate about it. But I think it’s a mistake. ... It’s just not a healthy thing, in my judgment, for our society.”

He said law enforcement and medical professionals were concerned about keeping marijuana out of the hands of youth, who could proceed from there to succumb to addiction to other drugs.

The civil liberties group said it was challenging prosecutors’ interpretation of the law in a “friend of the court” brief filed today in Commonwealth v. Pacheco, a case in the Supreme Judicial Court on appeal from Lynn District Court. An Essex County district attorney’s spokeswoman had no comment on the case.