Why Are They Still Prosecuting Pot Cases in Massachusetts?

With marijuana having been legalized through the ballot in Massachusetts, and with it now being legal to grow 12 cannabis plants in a household, one might expect to see any existing small time marijuana grow cases to be dismissed.


Unfortunately, that hasn’t been the case.

Just ask Marcus Upshaw, who in a sane state wouldn’t have been charged in the first place. He should have been protected by the Commonwealth’s existing medical marijuana law, but is instead currently facing distribution charges for about two ounces of cannabis and less than a handful of plants—that despite his being a registered patient with the state Department of Public Health.In 2013, Upshaw received a doctor recommendation for medical marijuana to help treat PTSD as well as depression and extreme social anxiety. Last year, he was arrested for distribution of marijuana after being stopped in a car with more than an ounce. His medical recommendation had lapsed, and he had not renewed it due to the inconvenience and cost. Despite having a legitimate medical defense, Upshaw took the prosecutor’s offer of a CWAF (to have the charges continued without a finding.

Last April, following his traffic stop, Upshaw renewed his medical marijuana recommendation, and was re-approved for the previously noted conditions in addition to a new condition, nerve pain from spinal vertebrae compression. In June, he applied once again for a new DPH card, which is required for a lapsed registration, and in August Upshaw’s rec was approved. Just two days after that approval, however, Upshaw had a small fire in his apartment, and while it was put out before the fire department arrived, first responders noticed a small amount of marijuana growing in the apartment (unrelated to the extinguished fire).

As a result of Upshaw having pot plants, the Acton Police Department was notified, and in turn applied for a search warrant, in the process listing the suspicion that there would be evidence of distribution such as money/cash or a customer list/ledger. The warrant application also notes that a search of the DPH database (by Acton authorities) of medical marijuana registrants did not list Upshaw. Having been officially approved by DPH two days before, Upshaw should have been listed in that database. But he apparently wasn’t, and the warrant was approved, causing him significant hardship in the time since (authorities also found what they believed was a stash of hash oil). 

According to DPH guidelines, until the medical marijuana program is fully implemented, a recommendation from a certified physician constitutes a limited cultivation license. For law enforcement purposes, however, DPH has inexplicably created a database that only includes those who have been approved by the state. That database, meanwhile, may not be updated in a timely manner. Which is apparently what happened to Upshaw. And which begs the question: With the current law and guidelines indicating that the recommendation is enough to grow, why are they telling the police to check a database that doesn’t list all the recommendations?

This all concerns Michael Latulippe, an advocate with the Massachusetts Patient Advocacy Alliance who has been advising the DPH on how to fix its mess—a mess that he feels is putting patients at risk. Patients like Upshaw. If Upshaw’s name had appeared in the DPH database when the Acton Police searched the resource, it’s likely that the warrant and ensuing charges would have never been issued.

Instead, when Upshaw told the Acton Police that he was a patient, they stated that he wasn’t covered without his card or his name in the database. 

Upshaw says the police seized anywhere from a quart to a quart and a half of cannabis tincture made from food grade glycerol. Not hash oil, like they told reporters. It’s what you might expect to find in the possession of a medical marijuana patient. Not a big seizure at all.

As for cash or drug ledgers? Nope. Nothing at all. Upshaw had less than ten dollars seized, and there is zero evidence that he was dealing marijuana. On the other hand, there is plenty of evidence that he was a medical marijuana patient—the police also seized dozens of pipes and bongs, some grow equipment, and less than a handful of plants. 

Middlesex County District Attorney Marian T. Ryan is nevertheless pressing forward with two charges against Upshaw related to dmanufacturing hash oil and being in possession of more than an ounce of cannabis. All should be dismissed. Upshaw is a legal patient with a valid recommendation. As of last November, he is also in a state where such a grow would be fully legal for a non-patient. 

You may be wondering why there is such a significant effort to prove that Upshaw is a dealer. It could be due to his previous arrest. Or is could be that he is a 27-year-old black male. At this point, only the district attorney knows.

And Upshaw’s not the only person of color still being persecuted for cannabis in Mass. 

Raimondo Raymond is another medical marijuana patient who is facing distribution charges after being raided for growing pot. Raymond says he uses rosen oil to treat his severe ADHD and anxiety, and had received a doctor’s recommendation. He never registered it with the DPH because it was not required; in retrospect, he didn’t realize that it might help shield him from a raid by the Middleboro Police Department. 

Raymond doesn’t believe that race had anything to do with the raid. Speaking on the phone, he says, “All he [the Middleboro detective] cared about was the card … I thought a recommendation made me legal.” 

Raymond also says a friend of his in the same town endured a similar medical marijuana raid with the same officer, but since he was listed in the DPH database, his plants were chopped down and no charges were filed.

Like Upshaw, Raymond is being represented by a public defender. It’s unclear why he’s being prosecuted since the state’s own guidelines would seem to protect him. “The law is the law,” he says. “These prosecutors don’t seem to know or want to even try and comply with it.

One can only hope that these are the last prosecutions of their kind in Mass. At the same time, state Sen Jason Lewis, considered the leading expert on weed among Beacon Hill lawmakers who themselves know little to nothing, is aiming to severely cut the cannabis possession limit from 10 ounces at home to 2 ounces, as well as limit for home grown plants from 12 to 6. Ironically, Lewis and others have shown superficial support for criminal justice reform—all while lining up to kill and compromise marijuana legalization, one of the clearest wins for criminal justice reformers in recent Mass memory. 

There is, of course, a choice. Instead of gutting the reform, Lewis should consider joining his colleague Jamie Eldridge in developing an amnesty bill that would dismiss charges, free prisoners, and seal criminal records related to marijuana. Otherwise, the war on Upshaw, Raymond, and any number of others continues under legalization.  

This article was produced in collaboration with the Boston Institute for Nonprofit Journalism.

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