Countering staunch opposition from the district attorney, the ACLU on Tuesday told Allentown City Council members they do have the right to craft a local marijuana law.
Council is scheduled to vote Wednesday night on making possession of a small amount of marijuana, possession of marijuana paraphernalia and personal marijuana use a summary offense punishable by a fine of as little as $25.
Under Pennsylvania law, possession of a small amount of marijuana is a misdemeanor carrying a maximum penalty of 30 days in prison and a $500 fine.
Allentown council in a committee vote last week backed the marijuana decriminalization measure 4-3. That slim of a majority would fall short of the five votes needed to overturn a possible veto by Mayor Ray O’Connell, elected by council March 29 after former Mayor Ed Pawlowski was convicted of corruption and resigned.
O’Connell has not come to a decision on whether to sign or veto the ordinance, a spokesman said last week and Tuesday.
Lehigh County District Attorney Jim Martin told Allentown City Council in a memo May 8 a local summary charge for marijuana “would be unconstitutional and unenforceable.” The crime is established under Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act, he said.
“Any local ordinance attempting to alter the penalties set forth in the Act would clearly violate the Act’s intent and would be in conflict with the language of the Act,” Martin wrote.
That is similar to the advice attorney Bill Murphy gave to Easton City Council in February. That council in a 4-3 vote rejected a local law making possessing a small amount of marijuana a civil, summary offense carrying a fine of $75 to $300.
The American Civil Liberties Union, in a memo Tuesday to Allentown council, cites Pennsylvania Supreme Court precedent relating to possession of drug paraphernalia in the 2011 case of Holt’s Cigar Co. v. City of Philadelphia.
“One thing that is crystal clear from the Holt’s Cigar decision is that creating a local law with a different penalty is not an irreconcilable conflict, as long as the local law does not permit what the Act forbids or forbid what the Act permits,” Mary Catherine Roper, deputy legal director for the ACLU, writes in the memo.
Philadelphia, Pittsburgh, Harrisburg, York, State College and Erie have all adopted decriminalization laws similar to that proposed in Allentown, marijuana advocates say.
“The ACLU of Pennsylvania is aware that the council is considering an ordinance to lower penalties for possession of marijuana, as has been implemented successfully in other cities throughout the commonwealth,” Andy Hoover, spokesman for the group, told council in an email Tuesday, adding, “The ACLU of Pennsylvania respectfully disagrees with DA Martin’s conclusion … .”
Allentown’s law would apply to possession of 30 grams or less of marijuana or up to 8 grams of hashish; possession of drug paraphernalia and personal use of marijuana.
Violators would face a fine of $25 for a first offense, $50 for a second in one calendar year, $100 for a third offense in a year and $150 or up to eight hours’ community service for a fourth offense. The proposal earmarks any revenue from the new law for recreation and police community engagement.
Bethlehem City Council members are scheduled to discuss the same proposal in committee May 22.
Here are the opinions to Allentown City Council on the matter from the district attorney and the ACLU:
Lehigh County District Attorney Jim Martin opposes local marijuana laws by Anonymous arnc2g2N on Scribd.