Almost every day in Palm Coast and Flagler County, one or more individuals are arrested and booked at the Flagler County jail for possession of small amounts of marijuana. Often the charge is in addition to other charges—driving on a suspended license, drunk driving, probation violation. But frequently, the charge stands alone: A motorist is pulled over for one reason or another, the cop smells pot, the individual as often as not admits to having pot, and an arrest follows.
The individual then faces a long journey through the court system. Possession of less than 20 grams of pot (or the rough equivalent of two dozen joints) is a first-degree misdemeanor under Florida law, with a maximum penalty of a year in jail and $1,000 fine. Those penalties are rare. If convicted, individuals usually are placed on probation while some qualify for a deferred-prosecution agreement. By then they’ve already had to spend money defending themselves (if they don’t have a court-appointed public defender), and absent spending more money to expunge it (assuming they qualify), they face a permanent blot on their record.
Flagler County Sheriff Jim Manfre wants to change that. He is proposing to de-criminalize possession of small amounts of marijuana. Deputies would still police marijuana possession and use. But they would issue civil citations instead of arresting users. The citation would typically amount to a fine of $100 and some community service.
There’s nothing new in that approach. Twenty states have partly or fully decriminalized possession of small amounts of pot for first-time offenders, including New York, California and most of New England’s states. Alaska, Colorado, Oregon and the District of Columbia have legalized recreational use of small amounts of pot.
In Florida, three counties have decriminalized pot possession, all since last summer: Miami-Dade, Broward and Palm Beach. The county commission in each case approved decriminalization either unanimously or with minor opposition. In each case, the fine for a first offense is $100, rising to $250 for a second offense and $500 for a third. Volusia County is also considering decriminalization.
For decriminalization to take place in Flagler, the county commission would have to approve an ordinance to that effect, and Palm Coast, Bunnell and Flagler Beach city governments would have to opt in with ordinances of their own, County Attorney Al Hadeed said.
“I think the Flagler County Commission should consider an inquiry into this law and think if it should be adopted here in Flagler County,” Manfre said. “And if they ask my opinion, I’d be in favor to decriminalize low-level marijuana possession.” The sheriff said de-criminalizing would help keep people out of jail, keep people from having a record, and, especially, keep deputies from spending time processing small-possession arrests, thus being able to spend more time patrolling for more serious crimes.
“It’s time, we’ve got to move on,” Manfre said. “Community standards have changed. We’re losing a generation of people whom we’ve arrested and are having a hard enough time getting employment as it is because they now have a prior arrest. I will tell you, most of the applications I get for law enforcement positions, most people check that off that they have had prior marijuana use—I would say at least half.”
Flagler County’s Authority
County commissioners were initially concerned that the county might not have the authority to contravene state law, especially as Flagler is not a charter county. But that’s not the case, Hadeed said: whether a county is charter or not is irrelevant. Counties have the power to enact a civil fine system. “But the fine may not exceed what’s provided by state law,” Hadeed said. “So they cannot contravene the criminal code, but they can make it a civil violation, and counties have done that.”
“If Flagler County were to consider this,” Hadeed continued, “I would say to the Board of County Commissioners that they’d need to assure themselves that the Sheriff and the State Attorney’s office were supportive of this approach, and would use it. There would be little benefit in promulgating a system that the state attorney and the sheriff’s office would not be inclined to use.”
State Attorney R.J. Larizza, whose district includes Flagler, Volusia, St. Johns and Putnam, said he’d want to have a look at the proposed ordinances—in Volusia and Flagler—to have something specific to discuss. But in principle, he’s behind the idea, if with several caveats and cautions.
“I keep an open mind. I believe it’s worthy of consideration,” Larizza said. He wants to have input in the process, and he wants to ensure that decriminalization doesn’t turn into a mechanism for individuals to chronically re-offend. To that end, he says a monitoring system would have to be developed (and one perhaps managed by a private firm through a database all local policing agencies would have access to, so an offender in Flagler could not get away with re-offending in Volusia).
“I’m optimistic we can figure out a way to make it work,” Larizza said, acknowledging that the decriminalization of marijuana is a national trend that includes allowances for recreational use, without any penalties. “I think you could view this as a step in that direction. I don’t know that it’ll ever get to that point but certainly we see decriminalization of marijuana over the years, it’s no mystery, it’s not random that it was marijuana that was chosen for this, because marijuana certainly doesn’t carry the serious concerns of some people that the harder drugs like heroin or cocaine or crystal meth do. But you know what, let’s not pretend that while other people reject the gateway argument, the legalization of marijuana will not be without its problems.”
Larizza said counties should be prepared to deal with those emerging problems, even if they cannot be defined ahead of time. Nevertheless, the state attorney said, he is especially in favor of reducing the burden of criminal records on small-time pot users. “It’s more giving somebody a break,” Larizza said. “That to me is the most important reason why it’s being debated and I think that notion is a worthy notion to have.”
County Commissioners’ Reactions
And that’s partly why Barbara Revels, who chairs the Flagler County Commission, said she is interested in having that discussion through a workshop with her colleagues and deep analysis provided by the administration. Two other county commissioners interviewed about the notion—Frank Meeker and Charlie Ericksen– said they’d be willing to have the discussion and explore the possibilities of decriminalization. Neither was committed to an ordinance: Meeker said he’d need to research the matter thoroughly and hear from law enforcement officials, but both leaned favorably toward the concept.
“Conceptually, I can see some value,” Meeker said. “I’m certain we have better, more significant issues to be handling in front of a judge as opposed to this kind of stuff, but again it’s going to be based on the testimony we get from the experts.”
Ericksen was reserved, but still leaning in favor of the idea. “I’m 73 years old, I’m from the old school that when something is wrong, it’s wrong, but life is changing as is government as are the penalties for it,” Ericksen said. “Maybe just older people like me saying what are you guys doing, you’re going to make everybody a pot head. That’s still in the mind of us older people.”
Revels made one assurance in an interview Friday: “Between the sheriff and myself, we’ll see that it gets discussed and looked at—not dropped in other words.”
Revels, who chairs the county’s public safety coordinating council—whose table includes the public defender, the state attorney, judges and all other members of law enforcement and the judicial system (or their representatives)—brought up the question of decriminalization at the council’s last meeting on Jan. 13. But there, too, responses around the table were non-committal as official after official spoke of wanting to see the proposed ordinances before pronouncing themselves.
Revels herself personally favors the idea, but also not without cautions. “I probably would have some very lively debates with friends who were in the law enforcement field or the court system field who might feel otherwise, that it’s a gateway drug, and anything that you do to lessen its impact encourage its use,” Revels said last week in the first of two interviews on the subject. “Myself personally I think it should be decriminalized but that’s me personally, and I’d like to hear a lot of conversations about it.”
There’s also the matter of a social service system that could intervene when the judicial system does not: just as with mental health and homelessness, Revels said, drug users should have a way to get help should they seek it, though those means may not be available. Beyond that, Revels is interested in knowing how the experience of other counties that have decriminalized pot is working out—whether it’s having an effect on jail populations, on the use of cops’ time, on the system’s finances. But those numbers may not be available for a year or two in Broward, Palm Beach and Miami Dade, where decriminalization is only a few months old—or a few weeks, in the case of Palm Beach.
The Cities’ Role
Should the county commission adopt an ordinance decriminalizing possession of small amounts of pot, Flagler Beach and Bunnell, which have their own police forces, would have to pass their own ordinances to give their police officers the authority to issue citations as well.
“Obviously it would be a more effective system if the incorporated areas of Flagler County would also supported it, although it is not in my opinion legally required,” Hadeed, the county attorney, said. “We could enact it for unincorporated Flagler County, leaving the options for the cities to adopt that option as well.”
The Palm Coast City Council would have to adopt its own ordinance giving the sheriff, who is under contract to provide police protection in Palm Coast, the authority to issue civil citations in the city.
Palm Coast Mayor Jon Netts said he was in favor of holding a workshop and exploring the issue witrh his colleagues. “On first glance it sounds to me like a reasonable approach to take,” Netts said of civil citations. “I’d really love to sit down with somebody in law enforcement here to hear what the other side of the story is.” He, too, had caveats, such as when someone is pulled over, is caught smoking pot, and is actually impaired (in which case, DUI laws kick in). But, he said, the discussion is key. “I’d be more than happy to engage in that conversation. I think that’s a worthwhile approach,” Netts said.
The decriminalization of marijuana may appear to be a relatively recent national trend. In fact, President Carter asked Congress to abolish all federal criminal penalties for small amounts of pot possession on Aug. 2, 1977, following through on a campaign pledge to do so. Carter was proposing to replace criminal penalties—up to a year in prison and a $5,000 fine—with a civil fine. The proposal would have applied to possession of less than an ounce of pot, and would have been coupled with a broad treatment program for addicts. “Penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself,” he wrote Congress in a message. “And where they are, they should be changed. Nowhere is this more clear than in the laws against possession of marijuana in private for personal use. We can, and should, continue to discourage the use of marijuana, but this can be done without defining the smoker as a criminal.” At the time California and Oregon had decriminalized possession of small amounts and not seen an increase in pot smoking, he said.
Carter’s initiative was derailed after his drug policy adviser, P:etger Bourne, had to resign after admitting that he’d prescribed a sedative to a White House staffer, drawing congressional calls for an inquiry into drug use by White House staffers. The matter was vastly overblown: there was no widespread drug use at the White House, but the outcry killed the marijuana initiative.
Manfre’s call echoes the same reasoning behind the Carter initiative, which has made a comeback in the form of state, county and municipal policies in the last few years. “Not everyone needs to be arrested, not everyone needs to be given a ticket, not everyone needs to be in jail. Some people do,” Sheriff Manfre said. “But there’s a whole range of people who can be dealt with differently.”