Underage possession of pot a felony? Who knows?


(Reprinted from Reason magazine under Fair Use Doctrine as educational)

By Jacob Sullum

Did Washington legislators accidentally make it a felony for someone younger than 21 to possess any amount of marijuana, as a spokeswoman for that state’s governor suggested last week? Did they do it on purpose, as one key legislator claimed? Or did they not do it at all, as the group representing Washington’s prosecuting attorneys has concluded? The third answer seems to be the correct one, but confusion on this point casts an unflattering light on legislators’ ability to write laws and prosecutors’ ability to understand them.

Last week The Lewiston Tribune, an Idaho newspaper, reported that three teenagers caught with small amounts of pot in Asotin County, Washington, had been charged with felonies punishable by up to five years in prison and fines of up to $10,000. According to Asotin County Prosecuting Attorney Ben Nichols, the felony charges were required by S.B. 5052, a bill enacted last April that established a new regulatory system for medical marijuana providers. Nichols said the bill also increased the penalties for underage marijuana possession, previously a misdemeanor punishable by up to 90 days in jail and a $1,000 fine.

“If prosecutors are finding that this language allows them to do this, that was not the intention,” Jaime Smith, a spokeswoman for Gov. Jay Inslee, told the Tribune. “This was not the intention that the governor had when working with legislators on this bill.” Although legislators were keen to prevent underage cannabis consumption, Smith said, “there are other ways to do that without charging them with felonies.” 

The Tribune consulted with the Washington State Liquor and Cannabis Board, whose spokesman, Brian Smith, agreed that “the intent of the legislation was not to increase penalties on minors in possession.” The board’s enforcement chief, Justin Nordhorn, nevertheless conceded that it “does appear” underage possession “is a class C felony, based on connecting the dots.”

Sen. Ann Rivers (R-La Center), the chief sponsor of S.B. 5052, told the Tribune making underage marijuana possession a felony was no accident. “We needed to send a message to our kids that this is an adult activity,” Rivers said. “We have to send a message to our kids: This will hurt you in more ways than one if you decide to participate.”

One of the main rationales for legalizing marijuana in Washington, of course, was that treating cannabis consumers like criminals, let alone felons, causes considerably more damage than marijuana does. If it is unwise and unjust to threaten a 21-year-old with prison over a joint, it hardly makes sense to treat a 20-year-old that way. Furthermore, the maximum penalties Rivers deems appropriate for underage marijuana use are much more severe than the state’s maximum penalties for underage drinking: a fine of $500 and two months in jail. That gap in penalties seems indefensible, especially since alcohol is in several important respects more dangerous than marijuana.

“From a policy perspective it’s a bad idea to prosecute a felony charge against a juvenile for possessing a small amount of marijuana,” the American Civil Liberties Union of Washington said in a statement quoted by the Tribune. “It will burden the young person with a permanent criminal record, which will impact their lives by making it harder to get student loans and to get a job. Juveniles with substance abuse problems need treatment, not harsh criminal punishments.”

Asotin County Juvenile Court Administrator Vonda Campbell told the Tribune that the teenagers charged with possession, ages 14, 15, and 17, would not be eligible for diversion because they were accused of felonies. “It’s as much a shock to the parents’ system as it is to the kid,” Campbell said. “The parents are just kind of blown away.”

The idea that teenagers (and 20-year-olds) would be punished so harshly over a little marijuana in a state that had legalized the drug for older residents was pretty striking, and the story was picked up by the Associated Press. But on Saturday the Tribune reported that Nichols, the county prosecutor, had changed his mind about what the new law requires and planned to knock the charges down to misdemeanors. “What I’m being told is I can still charge juveniles, even after the law change, with misdemeanor possession,” Nichols said. That was the advice he got from the Washington Association of Prosecuting Attorneys. “The best interpretation is that simple possession of under 40 grams of marijuana continues to be a misdemeanor,” said the group’s executive secretary, Tom McBride. “That doesn’t change the fact that I think it’s very confusing.”

The law is rather confusing, but its effect seems clear once you follow the trail through Washington’s criminal code. Section 14 of S.B. 5052 says “no person under twenty-one years of age [except for qualifying patients] may possess, manufacture, sell, or distribute marijuana, marijuana-infused products, or marijuana concentrates.” It also says “any person who violates this section is guilty of a class C felony” but with a crucial qualification: “except as provided in RCW 69.50.4014.” RCW 69.50.4014 deals with possession of up to 40 grams (1.4 ounces), which it classifies as a misdemeanor “except as provided in RCW 69.50.401(2)(c).” RCW 69.50.401(2)(c) does talk about possession, but only possession with intent to deliver. The upshot is that simple possession of up to 40 grams remains a misdemeanor for people younger than 21.

Several questions remain: Why didn’t Nichols consult with his colleagues (or read the law more carefully) before scaring the hell out of those three teenagers and their parents? Why does Rivers think her bill did something it did not do—i.e., treat underage possession as a felony? And why on earth does she think that’s a good idea? 

Jacob Sullum is a senior editor at Reason magazine and a nationally syndicated columnist.

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