MONTPELIER — An effort to decriminalize possession of small amounts of marijuana sprouted unexpectedly in the Senate on Friday and grew into a convoluted floor fight before dying — at least for now — by one vote.
Sen. Joe Benning, a Caledonia County Republican, and Sen. Philip Baruth, a Chittenden County Democrat, tried to insert a marijuana decriminalization amendment into a bill the Senate was taking up Friday that contained several other changes to the criminal justice system.
Their amendment would have made possession of an ounce or less of pot punishable by a $100 fine, a civil penalty on par with a traffic ticket.
But many lawmakers, even some who support marijuana reform, were taken aback by the move from the second-year senators. And in a 14-13 decision — with Senate President Pro Tem John Campbell casting the tie-breaking vote — the Senate decided to table the amendment and the underlying bill.
Lawmakers disliked the idea of making such a large policy decision without taking any testimony from law enforcement or other interested parties that normally would have been heard in the Senate Judiciary Committee.
Sen. Dick Mazza, a member of the Senate since 1985, said he didn’t “ever recall legislation of this magnitude being brought up in a floor amendment.”
“To have this sort of legislation brought up on Friday afternoon at 2 o’clock and the impact it might have in the future, it’s just bad timing,” said Mazza, a Democrat representing the Grand Isle district.
Sen. Tim Ashe, who supports marijuana decriminalization, made the initial motion to table the bill, or let it “lie.”
Ashe said he felt ambushed by the amendment. “It’s outrageous to bring it up without any notice to members of the Senate,” said Ashe, a Chittenden County Democrat-Progressive.
With the amendment and the underlying bill, S.138, ordered to lie, the marijuana decriminalization measure is essentially in a holding pattern but can be taken up for action at the request of just one lawmaker.
Marijuana decriminalization is an issue that has lurked in the Statehouse the past two sessions.
Gov. Peter Shumlin is a supporter, and Campbell has also publicly backed the concept.
House Speaker Shap Smith has been the main force stalling the “decrim” movement, but his opposition didn’t deter Benning and Baruth.
For Benning, a defense attorney, the issue is a personal one.
As he urged his fellow senators to vote in favor of his amendment, he told of being arrested in 1975 when he was a high school senior in Middletown, N.J., after police raided a house where he and his rock ’n’ roll band were practicing.
Benning said he wasn’t a marijuana smoker at the time — and still isn’t — but some of his friends were.
Police found hash pipes, Benning said, and dragged everyone to the police station. Prosecutors later dropped the charge against him, according to Benning.
But when Benning was applying to take the bar exam after law school, he faced the question: Have you ever been arrested or convicted of a crime?
Before answering, Benning went through the lengthy process of expunging records that resulted from his detention in 1975, so that he could legally answer “no” on his bar exam application.
“The point I’m trying to make is quite simple: Since that summer of 1975 I have had a very clear understanding that there is a problem with how we approach the war on drugs,” Benning said.
Benning argued that the expense of having people who possess marijuana make the long journey through the criminal justice system — involving police, prosecutors, judges, public defenders and others — is unreasonable.
“Everything I have just talked about in this system is at state expense,” Benning said.
People who get criminal records as a result of marijuana possession are also unfairly prevented from getting federal student loans for college or law school, Benning added.
Benning said he crafted the amendment with the help of Keith Flynn, the commissioner of the Vermont Department of Public Safety, who is a Shumlin appointee.
Sen. Dick Sears, chairman of the Senate Judiciary Committee, said he was sympathetic to Benning’s argument.
“I think it’s an important debate,” Sears said. “I don’t disagree that we need to have a debate about our war on drugs.”
But Sears and two others on the Judiciary Committee, Sen. Ann Cummings and Sen. Diane Snelling, voted in favor of backing a different marijuana reform amendment instead of the Benning-Baruth amendment.
Sen. Jeannette White was the only member of the Judiciary Committee in favor of the Benning-Baruth amendment. Sears’ amendment would have changed criminal statutes so people possessing an ounce or less of marijuana would face no jail time for the first two offenses, but it would still be a criminal charge. Offenders also would have the option of court diversion for the first two offenses, a process that erases criminal records.
Sears and the others on the Senate Judiciary Committee supported substituting this amendment for the Benning-Baruth amendment because the full Senate had passed the same measure in a 22-7 vote in 2007 after lengthy testimony.
Cummings, a Washington County Democrat, said she backed Sears’ amendment because it had been closely examined in 2007. Cummings said she might be willing to back marijuana decriminalization if she had time to listen to both sides of the debate.
“But I’m not comfortable making that decision on the fly on the floor because this has not had time to be deliberated,” she said.
But Benning said that failing to back decriminalization and instead supporting the Sears amendment would show the Senate is “timid in the face of something that has long been a thorn in the side of not just criminal defense attorneys but also law enforcement and most especially the individuals charged with a crime.”
Sears countered that calling his amendment timid is a misnomer because eliminating potential jail time is a major step.
Ashe said he supported the direction both amendments push Vermont but wasn’t prepared to make such an important decision.
When he gets calls and emails from people angry about his decision, he said, “I’m going to be at quite a loss to explain how it happened so fast.”
A few moments later, Ashe made his motion to let the bill lie, which also tabled the two amendments.
After the Senate adjourned, Benning said he wasn’t disappointed with the outcome because the amendments and the bill are tabled, meaning the debate will continue.
There are other important proposals in the underlying legislation — such as creating a better record-keeping system for search warrants — and Sears needs the bill to pass, Benning said.
“It’s going to have to be moved, because Dick Sears really wants the underlying bill,” Benning said. “He’s going to want to resurrect the bill, and that means we resurrect the amendments.”
Sears, however, has other plans. He intends to essentially dismantle S.138 and attach pieces of it to bills coming out of the House Judiciary Committee. Parts of S.138 that have appropriations will be inserted into the budget, Sears said.
“As far as I’m concerned, that bill is dead,” he said.
After hearing Sears’ plans for S.138, Benning responded: “I’m disappointed, because it’s ducking the issue.”
After the floor debate, Sears wouldn’t say whether he is for marijuana decriminalization.
Pointing to his attempt at a compromise amendment, he said it’s unfair to characterize him as an opponent of reforming marijuana possession statutes.
“I was trying to improve them,” Sears said, “and I got my head handed to me, is as simple as I can put it.”
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