Allentown City Council approved an ordinance decriminalizing small amounts of marijuana within city limits Wednesday, although the rule is unlikely to be enforced.
The 4-3 vote, with the three former police officers on the board dissenting, would make possession of a small amount of marijuana — 30 grams or less — a summary offense rather than a misdemeanor.
The vote followed vigorous discussions Wednesday and at a committee meeting on the bill last week, when council members divided on the issue. Opponents argued that the ordinance would contradict state law, but proponents said the ordinance would save police time and prevent those charged with possession from facing a criminal record.
Decriminalization would not legalize marijuana, but instead reduce the penalty. Marijuana is classified by federal law as a Schedule 1 substance, the same as heroin. Possession of a small amount carries a penalty of up to 30 days in prison and a $500 fine.
Under the bill, a first-time violation would be a summary offense, akin to a traffic ticket, and carry a $25 fine.
Mayor Ray O’Connell, who must sign off on the legislation or veto it, said Wednesday that he has 10 days to make his decision. He declined to comment further. Council would need five votes to override a veto, which the board does not appear to have.
Regardless, questions remain about whether the bill would ever go into effect even if O’Connell approved it.
Will it be enforced?
Most likely, no. Lehigh County District Attorney Jim Martin warned members of City Council last week that he believes the proposal conflicts with state law, calling it “unconstitutional and unenforceable.”
Martin said in a memo to the board that he would direct the Allentown Police Department to enforce state law, which calls for small possession to be charged as a misdemeanor.
Allentown police brass could choose to disobey Martin, but that hasn’t been the practice in the past.
In 2008, Martin ordered Allentown police not to enforce an ordinance passed by City Council that required owners of lost or stolen guns to report their disappearance within 48 hours. The ordinance, which Martin argued conflicted with higher law, was never enforced, and council eventually repealed it in 2015.
Police Chief Tony Alsleben said Wednesday that he will not comment on the ordinance until it is signed into law.
What kinds of problems could that create?
Martin’s opposition to decriminalization poses a bigger problem for neighboring Bethlehem, which is divided between Lehigh and Northampton counties.
Bethlehem City Council is considering a similar decriminalization ordinance, and is due to hold a committee hearing on the issue this month. Northampton County District Attorney John Morganelli favors decriminalization of marijuana statewide and has opted not to take a position on whether cities can enact their own ordinances for enforcement.
If Bethlehem leaders were to approve a decriminalization ordinance, that could set up a situation where the law could be enforced in the eastern half of Bethlehem but not in the western portion.
Could this issue land in court?
Similar cases have. In 2011, Lehigh County Judge James T. Anthony ruled that a city ordinance banning the use of handheld cellphones while driving was invalid because that was a power of the state, not local municipalities. Allentown attorney Joseph Maher filed the suit on behalf of two drivers who were cited for using cellphones while driving.
Allentown opted not to appeal the suit, and stopped enforcing the law. Bethlehem, which had enacted a similar ordinance, stopped enforcing it as well.
This week, the American Civil Liberties Union of Pennsylvania notified City Council that the group disagrees with Martin’s position on the marijuana law. In a memo to the board, the ACLU cited a Pennsylvania Supreme Court decision that upheld the authority of Philadelphia to enact local controls on drug paraphernalia.
The Philadelphia decision made it clear 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,” the ACLU memo stated.
