Nashville’s Metro Council made history Tuesday by approving the city’s first measure to allow lesser civil penalties for people caught with small amounts of marijuana, but it may set the stage for a confrontation with the state.
Meanwhile, some Nashville judges are now raising concerns that moving minor marijuana possession cases from criminal to civil court may give people fewer options to later erase those encounters from the public record.
The council voted 35-3 to give final approval of legislation to give Nashville police the option of reducing the penalty for people who are found in knowing possession of a half-ounce of marijuana or less to a $50 fine or 10 hours of community service.
Councilman Dave Rosenberg, lead sponsor of the bill, said efforts aimed at marijuana decriminalization have become commonplace across the country. He listed a long list of cities and states that have passed versions, noting that even the conservative Deep South of Mississippi has law on the books.
"All this bill does is give police the option of not treating someone with a little pot like a hardened criminal," Rosenberg said. "Because when you start treating good members of our society like criminals they beginning acting like criminals.
"As much as as I'd like to think we're cutting-edge on this one, we're not," he added. "We're catching up."
The city of Memphis is scheduled to take up a similar ordinance in two weeks.
Nashville’s pot legislation now heads to the desk of Mayor Megan Barry, who told The Tennessean this week she would sign the measure into law.
"This legislation is a positive step forward in addressing the overly punitive treatment of marijuana possession in our state that disproportionately impacts low-income and minority residents," Barry said in a statement after the council's vote.
The mayor had previously been noncommittal on the measure, but has said she is "generally supportive" of efforts to decriminalize marijuana.
“It is important to stress that this ordinance is not a license to sell, possess, or use marijuana in Nashville," she said. "When this ordinance becomes law, police officers will still have the ability to make arrests or issue state criminal citations for marijuana possession as circumstances warrant, which is a Class A misdemeanor under state law.”
Despite a threat from a Republican lawmaker to explore withholding state highway funding from Nashville or Memphis if efforts passed, Barry said Nashville shouldn’t govern “based on what the state may or may not do.”
The bill was originally drafted in a way that would have moved toward closer to outright decriminalization because it would have made a civil penalty automatic. But following concerns of the Metro Nashville Police Department, the council approved an amended version to simply give police the option of handing out a civil penalty instead of misdemeanor charge.
The amendment flipped the language from saying violators “shall” be given a civil penalty to saying they “may” be offered a civil penalty. As a result, Nashville police went from being opposed to the bill to being neutral.
Nashville’s proposal has been framed by supporters as a way to allow offenders avoid accumulating a criminal record, which can lead to harsh consequences in terms of employment, housing and education. Supporters say young people of color are disproportionately affected.
Groups or people that have backed Nashville’s ordinance include Davidson County Sheriff Daron Hall, Public Defender Dawn Deaner, the Tennessee legislature’s Black Caucus and American Civil Liberties Union of Tennessee.
But Rep. William Lamberth, R-Cottontown, has said the bill would create “two standards of justice” where one person caught with small amounts of pot could face a $50 fine and another could face 11 months and 29 days in jail.
The Sumner County lawmaker has said he is “strongly considering" filing a state bill next session that would penalize Nashville either Nashville or Memphis if passes and enforces its pot ordinances, which he has alleged also runs afoul with state law.
He’s said his potential bill would seek to halt state highway funds from cities that do not enforce criminal penalties outlined in state law. Funding would continue again if a violating city overturns their policy. This past year, the state set aside $129.1 million in highway funds for Shelby County and $119.5 million for Davidson County.
Some judges in Nashville have raised concern that the bill’s council sponsors might not be accomplishing what they hope in terms of allowing offenders to avoid a record. Civil records can only be expunged when a matter is dismissed or is not prosecuted, according to a Metro code.
Davidson County General Sessions Judge William Higgins, during a recent meeting of judges, also noted that criminal penalties, although not criminal convictions, are easily accessible by potential employees, landlords and others on the Internet.
Supporters of the ordinance counter by noting that criminal convictions can have more damaging repercussions than civil penalties. Those convicted also have to wait longer and pay a higher fee for the expungement
Reach Joey Garrison at 615-714-0539 and on Twitter @joeygarrison. Staff reporter Stacey Barchenger contributed to this report.