Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Sunday, August 15, 2021

California Supreme Court rules Prop 64 did not undo criminalization of possession of cannabis in prison

This past week, the California Supreme Court ruled in People v. Raybon, No. S256978 (Cal. Aug. 12, 2021) (available here), that state prisoners cannot legally possess marijuana while in prison.  The start of the court's ruling highlights why this was not quite a no-brainer given the law of Proposition 64:

This case requires us to interpret Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (Prop. 64, as approved by voters, Gen. Elec. (Nov. 8, 2016) (Proposition 64 or the Act)).  The question we must answer is whether Proposition 64 invalidates cannabis-related convictions under Penal Code section 4573.6, which makes it a felony to possess a controlled substance in a state correctional facility.  Although Proposition 64 generally legalizes adult possession of cannabis, it contains several exceptions.  One such exception provides that the Act does not amend or affect “[l]aws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation . . . .” (Health & Saf. Code, § 11362.45, subd. (d).)  The Attorney General contends this exception applies to violations of Penal Code section 4573.6, meaning that possession of cannabis in a correctional facility remains a felony. Defendants disagree, arguing that because the exception only refers to “[l]aws pertaining to smoking or ingesting cannabis,” it does not apply to laws that merely criminalize possession of cannabis.

Ultimately, we find the Attorney General’s proposed reading of Health and Safety Code section 11362.45, subdivision (d) to be more persuasive. As discussed below, the phrase “[l]aws pertaining to smoking or ingesting cannabis” (ibid.) is broad enough to encompass statutes that criminalize possession. Moreover, there is no law that makes it a crime to smoke, ingest or use cannabis (or any other form of drug) in prison. Instead, the Legislature has taken a “ ‘ “prophylactic” ’ ” approach to the problem of drug use in prison by criminalizing only the possession of such drugs. (People v. Low (2010) 49 Cal.4th 372, 388.) Thus, under defendants’ interpretation, section 11362.45, subdivision (d)’s carve-out provision would fail to preserve any preexisting law regulating cannabis in prisons from being “amend[ed], repeal[ed], affect[ed], restrict[ed], or preempt[ed]” (§ 11362.45), and would instead render the possession and use of up to 28.5 grams of cannabis in prison entirely lawful.  It seems unlikely that was the voters’ intent.  Stated differently, it seems implausible that the voters would understand the requirement that Proposition 64 does not “amend, repeal, affect, restrict, or preempt” any “[l]aws pertaining to smoking or ingesting cannabis” (§ 11362.45, subd. (d)) to convey that, as of the date of the initiative’s enactment, possessing and using up to 28.5 grams of cannabis would now essentially be decriminalized in prisons.  In our view, the more reasonable interpretation of section 11362.45, subdivision (d) is that the statute is intended “to maintain the status quo with respect to the legal status of cannabis in prison.” (People v. Perry (2019) 32 Cal.App.5th 885, 893.)  Thus, possession of cannabis in prison remains a violation of Penal Code section 4573.6.

https://lawprofessors.typepad.com/marijuana_law/2021/08/california-supreme-court-rules-prop-64-did-not-undo-criminalization-of-possession-of-cannabis-in-pri.html

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