Despite the unanimous position of the Commonwealth's District Attorneys, Attorney General, Sheriffs, Governor, and the Berkshire County legislative delegation opposing the passage of Question 2, voters overwhelmingly approved the initiative petition that appeared on the November 2008 ballot. The initiative, entitled "An Act Establishing A Sensible State Marihuana Policy," makes the possession of one ounce or less of marijuana punishable only by civil penalties and forfeiture of the contraband. District Attorney David F. Capeless, together with the Massachusetts District Attorneys Association and other law enforcement agencies, has identified a number of issues that raise serious questions regarding the implementation of this Act.

The Act places severe restrictions on police officers who enforce the narcotics laws of the Commonwealth. First, the State Police appear to be effectively precluded from having any capability of issuing a citation for marijuana possession, even when confronting a person carrying dozens of joints, unless a uniform, acceptable citation form is adopted for all municipalities. Second, the Act prohibits the arrest of a person possessing an ounce or less of marijuana who is not otherwise committing a separate crime. Instead, police can only issue a civil citation to the person and seize the marijuana. The Act does not provide any remedy if the offender refuses to identify him or herself to the police, nor does it offer any recourse if the offender provides false information.

When police officers are able to identify offenders and issue them citations, the law provides minor penalties without any enhanced penalty for non-compliance. The Act provides for a civil penalty of $100 for offenders aged 18 or older. For offenders under age 18, the same $100 penalty applies, as well as the successful completion of a drug awareness program. Failure to complete the program within one year could result in the penalty being increased to $1,000, for which the offender and his or her parents would be jointly liable to pay. For offenders aged 17 or older at the time of the offense, the Act provides no enforcement mechanism if the offender fails to pay the penalty or complete the program. This is because the Act explicitly states that neither the Commonwealth nor any of its political subdivisions or their agencies may impose any form of penalty, sanction, or disqualification on an offender for possessing an ounce or less of marijuana. Therefore, unlike the failure to pay a civil motor vehicle citation fine that triggers sanctions by the Registry of Motor Vehicles, including the suspension of one's driver's license, the offender who fails to pay the civil penalty or complete the drug awareness program cannot be additionally penalized.

The passage of the Act has generated numerous issues regarding the ability of state agencies and institutions to regulate the use of marijuana. The Act effectively makes marijuana users a protected class of citizens who are immune from any criminal penalty, even if they willfully fail to pay their civil penalty or complete the program. Consequently, public schools and colleges may be prohibited from enforcing reasonable sanctions they presently impose on students for possessing marijuana. Likewise, public servants such as police officers and mass transit workers who must submit to periodic narcotics screening tests may also be immune from state-imposed sanctions for testing positive for trace amounts of marijuana in their blood or urine. Schools and public agencies are concerned that they may be civilly liable for terminating employees who test positive for marijuana. Similarly, the Department of Children and Families, formerly known as the Department of Social Services, may be prohibited from excluding a person as a foster parent who has repeated civil citations for marijuana possession and thus may not provide an optimal environment for a child who needs a safe placement.

For those offenders under the age of 18 who must complete a drug awareness program, the Act mandates that the Department of Youth Services (DYS) provide class-room based education that includes 4 hours of classroom instruction and 10 hours of community service. However, DYS is a custodial entity for juvenile offenders and is not equipped to run these mandatory public health education programs, much less fulfill the new law's mandate that they certify to local police departments that a juvenile offender has completed the program. A funding mechanism, education curriculum and training locations must be established in order for the provisions of Question 2 to be met.

The Act places unrealistic burdens upon the resources of the Commonwealth. The Department of Public Health's (DPH) Drug Labs are grossly underfunded and are burdened with a huge backlog of drugs awaiting testing for criminal cases. The Lab's current backlog is over 13,000 cases with a turn-around time approaching four months. Judges are releasing defendants held on bail because the Commonwealth does not have the test results to proceed to trial. Marijuana seized for civil fines will take a backseat to testing for criminal cases. Offenders can simply contest their civil fines and demand a magistrate's hearing (advice which is already circulating). If the drug analysis has not been received from the DPH in time for the magistrate's hearing, the civil citation could be dismissed. The use of marijuana is both a public safety and public health matter. The Commonwealth needs to know, one, two and five years down the road, what (if any) effect the decriminalization of marijuana has had, especially regarding teen usage. It is therefore critical that a centralized repository of data be created to identify trends in marijuana use.