US

California Inmates May Possess Marijuana–but They May Not Smoke It

By Victor Westerkamp

The California 3rd District Court of Appeal ruled last Tuesday, May 11, that it’s legal to possess up to an ounce of marijuana in prison—you’re just not allowed to consume it.

California voters legalized recreational possession of less than an ounce of cannabis at a referendum in 2016; however, lawmakers did not single-out certain groups, like inmates of correctional institutions.

Recently, five inmates convicted of possessing marijuana in prison took it to court, contending that they too are inhabitants of California and should be treated equally. The court decided in their favor, overruling the former Sacramento County convictions.

There is a caveat, however. State law says cannabis is still outlawed in prison and penitentiary officials can still discipline inmates with possession, as it may be considered a violation of prison rules. It’s just that possession is no longer a justification for criminal charges, according to state law.

“It may be legal, but you can still ban it. Cellphones are legal. Pornographic images are legal. You can’t have either one in prison,” Lafayette attorney Dan Horowitz told The Mercury News.

Horowitz continued jokingly, that the new law, “may make Saturday night movies at low-security prisons much more entertaining,” but he added that with the current situation a problem has risen since cannabis laws have become so diverse among the individual states.

“According to the plain language of … Proposition 64, possession of less than an ounce of cannabis in prison is no longer a felony,” the three-judge panel decided on Tuesday. “Smoking or ingesting cannabis in prison remains a felony,” AP News reported.

“The voters made quite clear their intention to avoid spending state and county funds prosecuting possession of less than an ounce of marijuana, and quite clear that they did not want to see adults suffer criminal convictions for possessing less than an ounce of marijuana,” Sacramento County Assistant Public Defender Leonard Tauman said in an email. He said the appeals court “quite properly honored what the electorate passed.”

“It creates confusion,” Dan Olsen, a defense attorney, told FOX40. “If it’s illegal to take it in, it’s illegal to use it, but now it’s not illegal to have it. It’s sort of like: what’s the point of making it not illegal to have it?”

“It should never make it into the prison, and if it does make it into the prison, it should just be basically a table ornament because it’s never supposed to go into your body,” Olsen continued.

“I think, in general, what the voters wanted when they passed Prop. 64, I don’t think there was a lot of thought about how it would affect the prisons,” Olsen said. “But I also don’t think the public cares a great deal.”

Corrections department spokeswoman Vicky Waters told AP News, “We want to be clear that drug use and sales within state prisons remains prohibited.”

The California Attorney General Xavier Becerra’s Office has not revealed whether it is considering to appeal the ruling to the state supreme court.