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Monday, December 20, 2021

Evolving Weed Laws Led to St. Louis' Latest Decriminalization Bill

Posted By on Mon, Dec 20, 2021 at 11:16 AM

click to enlarge Alderpersons Bret Narayan and Annie Rice look on as St. Louis Mayor Tishaura signs a marijuana decriminalization bill into law on December 13. - DANNY WICENTOWSKI
  • Alderpersons Bret Narayan and Annie Rice look on as St. Louis Mayor Tishaura signs a marijuana decriminalization bill into law on December 13.

In 2018, attorney Bret Narayan stood before the St. Louis City's Board of Aldermen and urged the members to "strike at the heart of the two-tiered justice system that we have now" — and to approve a bill that would effectively legalize marijuana in St. Louis.

That bill would fail. But three years later, on December 13, Narayan watched as St. Louis Mayor Tishaura Jones signed into law the most sweeping cannabis decriminalization bill in the city's history. Now an alderman himself, Narayan had sponsored the bill, which amends the city's local ordinances to decriminalize possession of up to two ounces of cannabis for adults 21 and older, as well as repealing punishment for the cultivation of up to six flowering plants.

In an interview, Narayan admits that in some ways the bill "does not go far enough" — particularly on the issue of expungements for people with previous city marijuana convictions, a component Narayan had planned to include but was dropped over legal concerns that it conflicts with state law.

"We wanted to go back and make sure no one who was still living had to deal with a marijuana related conviction at the municipal level," he explains. "We didn't want to leave folks behind."

But passing imperfect cannabis legalization bills with limited scope is exactly how St. Louis has reached this point. In 2013, St. Louis' Board of Aldermen voted to decriminalize cannabis, making it a municipal violation that could be resolved with a fine — but doing so preserved the "two tiers" of injustice that Narayan lambasted in 2018. That year, a pair of proposed bills at the Board of Aldermen pitted two visions of decriminalization against each other.

One measure sought to prohibit the city and its police department from committing any resources to citing people for small-scale weed possession. The other left the law in place, but reduced the fine to $25.

At the time, Narayan testified in favor of the more ambitious bill: The "two tiers" of injustice he described in his remarks to the board represented the two different ways the justice system treated people accused of marijuana crimes: Those who could afford attorneys often had their charges amended or dropped, and those who couldn't paid the fine, but they then lived with a conviction on their record which could impact their future job and housing prospects.

The two 2018 bills divided the board. The sponsor of the more aggressive bill, Alderwoman Megan Green, clashed with the board's president Lewis Reed, who had filed his more limited proposal to lower the fines for a violation.

In the end, the board in 2018 punted on Green's effort to essentially defund the city's marijuana prohibition, and instead passed Reed's bill, which lowered the cost of a violation but ensured police could still use the odor of marijuana as a legal justification for "probable cause" before a search.

Narayan's 2021 bill doesn't outright ban police from using the presence or smell of marijuana as probable cause, but it does stipulate that police can only initiate "a brief stop for the sole purpose of determining whether an individual is a qualified patient."

In that case, even if the subject of the stop doesn't have their medical card on them, or if the officer is unable to verify that they are patient, the next step isn't arrest, but a summons for a court date: "If an individual appears at any Court date with proof that they are a Qualified Patient, the matter shall be dismissed," the bill states.

Narayan says the bill was only introduced after lengthy consultations with both the city's legal counsel and police officers themselves. The compromise is intended to prevent officers from using marijuana as a pretext for detaining people for the mere presence of cannabis, but without preventing cops from responding to more egregious situations — such as driving under the influence or using marijuana illegally in a public space, or in other cases where cannabis possession is taking place amid more serious crimes.

Attempting to broadly ban police from investigating marijuana odor as "probable cause" ran into further legal problems, Narayan says. He notes that similar attempts to do so in other states have led to "costly litigation" for both the individuals fighting the criminal charges and the municipalities defending their laws.

"This was an attempt to be proactive," Narayan says of his 2021 bill. "If you have a medical card, there's no evidence that you committed a crime based on the odor of either raw or burnt marijuana — because you are allowed to be in possession of burnt marijuana. Let's avoid the cost of that."

The bill has the support of St. Louis Public Safety Director Dan Isom. In a November 9 committee hearing, Isom said the 2018 statewide vote that legalized medical marijuana had changed the landscape for law enforcement.

"With the constitutional amendment, it is safe to say the simple presence of these small personal amounts of marijuana does not constitute probable cause," Isom told the committee members, and added that it is "certainly not sufficient to make an arrest."

Indeed, the passage of the latest bill underscores how legally tricky it can be to create a drug policy that addresses the harm and racial disparities that result from over-policing. When St. Louis first decriminalized marijuana in 2013, making it a municipal violation, those racial disparities persisted: In 2017, police data showed that the first four years of the new city marijuana policy led to more than 800 citations for possession, with Black people accounting for more than 80 percent of the cases.

In that era, the disparities highlighted the ongoing injustice of drug prohibition and the ways that money and race revealed the harm of the existing laws.

In 2021, Narayan concedes that, even under the new law, the justice system is still split between two tiers: On one side are those with legal medical marijuana licenses. On the other are those without, a group still vulnerable to the long-term impacts of the state's drug laws.

Even limited, the new law — which was passed unanimously on November 23 — signals that local lawmakers are paying attention to the ongoing public embrace of marijuana. Narayan says that while some alders were initially hesitant, data that showed more than 80 percent of St. Louis residents voted for the 2018 medical marijuana amendment "changed the perception of a lot of people."

"Part of it was the evolution of the state law, and they realized the the sky wasn't falling," he says. "This is proof that when the time is right, legislators that represent very diverse populations can come together to get something done."

Follow Danny Wicentowski on Twitter at
@D_Towski. E-mail the author at [email protected]
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