What's a more serious crime, rape or marijuana possession? Marijuana possession, answers the federal government, at least when it comes to considering applications for student loans.

Due to an odd combination of state and federal laws, students may not be able to afford college after being caught with couple of joints. Legislation proposed by state Representatives Edith Ajello (D-Providence), Chuck Levesque (D-Portsmouth), and three other lawmakers seeks to change this by repealing the $200 minimum fine for first-time marijuana possession. But assistant public defender Sean Farley says Ajello's bill would do little and argues for more comprehensive legislation to help drug users avoid criminal records.

In 1998, Congress passed legislation barring students from receiving federally guaranteed student loans for one year after a drug possession conviction and two years after a drug dealing conviction. Students must declare drug convictions on their Free Application for Federal Student Aid (FAFSA). FAFSA contains no questions, though, about rape or other crimes.

The law makes little sense, says Ajello, because it may divert young people from college for a single instance of marijuana use.

Meanwhile, state law increases the likelihood of student loan rejection by establishing a $200 minimum fine for first-time marijuana possession, relates Levesque, who handles misdemeanor drug cases as Portsmouth's assistant town solicitor. A person who pleads nolo contendere and successfully serves probation, or whose case is filed for a year and has no further problems, can honestly say that they have no convictions, he notes. Even first time non-violent offenders caught with small amounts of heroin or cocaine can make the same claim by entering the attorney general's diversion program, says spokesman Jim Martin. But first-time pot possessors don't qualify for the program because they're only guilty of a misdemeanor.

Some judges avoid the problem by treating the $200 fine as optional and filing marijuana cases, but district court Judge Robert Pirraglia believes the fine is mandatory. Ajello's bill would resolve that dispute, but Pirraglia says he would levy fines even if the law changes. "Any drug offense for which there's a guilty finding should carry a fine as a deterrent," he contends. And anyone who is fined has a permanent conviction that must be reported to FAFSA, unless it is expunged after five years.

Pirraglia's stance demonstrates that Ajello's bill won't solve the problem, says public defender Farley. The legislature can only be effective, he says, by requiring diversion programs that provide treatment, not penalties, for first-time drug offenders.

Meanwhile, US Representative Barney Frank of Massachusetts is proposing to repeal the 1998 federal law.

Issue Date: March 22 - 28, 2002