California Prisoners Can Possess Marijuana But They Just Can't Smoke It

By Paul Gaita 06/19/19

Smoking or ingesting marijuana in prison remains a felony in the state.

California prisoners playing chess in their cell

A ruling by district court in Sacramento, California, will allow the state's prison population to legally possess marijuana without threat of conviction, but they may not smoke or ingest it. The decision was made as part of an appeal brought by Sacramento County-based inmates who had been convicted of possessing cannabis in their cells.

In overturning the case, justices from the California Court of Appeals for the Third Appellate District ruled that the language of Proposition 64 – the 2016 California ballot initiative that legalized recreational marijuana - specified that consumption of cannabis, not possession, is illegal, and as such, smoking or ingesting marijuana in prison remains a felony. The ruling also allows prison authorities to ban possession at their respective facilities.

The case in question involved five prison inmates whose convictions for marijuana possession added more prison time to their respective sentences. After relief was denied by the Sacramento State Court, they appealed with the Third District, where a panel of three justices underscored that the "plain language" of Proposition 64 made clear that possession of less than one ounce of cannabis in a prison was not a felony.

"The purpose of the language is to describe the vast array of means of consumption, and consumption, not possession, is the act the voters determined should remain criminalized if the user is in prison," wrote Presiding Justice Vance W. Rayne.

The justices also noted that consumption "can be achieved" through inhaling non-burning vapor or topical application, and not just smoking or ingesting, which the court noted remains a felony in prison. Additionally, the ruling confirmed that prison officials may ban possession to "maintain order and safety in the prisons."

Raye and his fellow justices also took to task California State Attorney General Xavier Becarra's argument, which as NPR noted, claimed that Proposition 64 created an "absurdity" that would legalize the use of marijuana in prisons and support smuggling.

"A result is not absurd because the outcome may be unwise," Raye wrote. "We cannot ignore binding precedent and the plain language of a statute based on the intensity of the Attorney General's passion to criminalize an act the electorate has decided no longer merits treatment as a felony."

Beccara's office has yet to announce whether it will appeal the decision, but both the state corrections department and marijuana advocates weighed in on the court's ruling.

"We want to be clear that drug use and sales within state prisons remains prohibited," said Vicky Waters, a spokesperson for the California Department of Corrections and Rehabilitation. "[We] are committed to providing a safe, accountable environment for prisoners and staff alike, and we plan to evaluate this decision with an eye towards maintaining health and security within our institutions."

Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML), described the ruling as a "novelty decision," but supported the court's emphasis on the clarity of Proposition 64's language and intent.

"You'd be hard-pressed to make an argument that the majority of Californians, when they were deciding on this issue, were voting to allow marijuana in the criminal justice system."

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Paul Gaita lives in Los Angeles. He has contributed to the Los Angeles Times, Variety, LA Weekly, and The Los Angeles Beat, among many other publications and websites.