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Court: Marijuana Is Legal, Even for California Prison Inmates

Court: Marijuana Is Legal, Even for California Prison Inmates
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Court: Marijuana Is Legal, Even for California Prison Inmates

Cannabis possession is OK for all Californians over 21, even the incarcerated. But prisoners can’t smoke it.

The rights afforded citizens end at the gate of the prison, but not all rights.

California prison inmates can’t vote and they can’t smoke cannabis, but they can absolutely possess the drug without incurring additional penalties including extended sentences, a state appeals court ruled last week.

Limited amounts of cannabis became legal for all adults 21 and over in California immediately following the passage of Proposition 64, the Adult Use of Marijuana Act, in November 2016, but there are exceptions. For example, Prop 64 does not allow adults of any age to possess cannabis in a school.

Under Prop 64,smoking cannabis in prison also remains a felony, but not possessing cannabis. This came through a ruling by the Sacramento-based Third District Court of Appeals in a case brought by five different Sacramento County-based prison inmates who were convicted in 2017 of possessing cannabis in their prison cells.

As POLITICO summed up, when Californians legalized cannabis possession for all adults 21 and over in Prop 64, they also legalized it for prison inmates, the court found.

Prisons can still ban the substance just as they can ban possession of cigarettes and alcohol, but the conduct is no longer a felony — and thus no longer grounds for additional punishment. However, consuming or selling cannabis in prisons is still bad.

“According to the plain language of Health and Safety Code section 11362.1, enacted as part of Proposition 64, possession of less than an ounce of cannabis in prison is no longer a felony,” Presiding Justice Vance W. Raye wrote in his opinion. Therefore, he added, “[t]he conduct underlying their convictions is no longer criminal under Penal Code section 4573.6.”

Attorney General Xavier Becerra’s office has yet to determine whether it will appeal the decision to the California Supreme Court, a spokesperson for the state department of justice told media. If it does, Becerra’s people may be in for a rough go, as the appeals court had no patience for the justice department’s argument that Prop 64’s “plain meaning” did not apply to prisoners.

“The attorney general obviously believes that possession of even a small amount of cannabis cannot be countenanced in prison,” the court wrote. “Here the voters, exercising their constitutional right to legislate through the initiative process, have changed the law and, in doing so, simply and plainly have decided to decriminalize that which the attorney general would not. Judges cannot rewrite the statutes to conform to either our, or the attorney general’s, notion of wise drug policy.”

Whether the case will become binding statewide precedent may hinge on whether challenges to felony possession charges brought against inmates since Prop 64’s passage are successful in other jurisdictions.

A spokeswoman for the California Department of Corrections and Rehabilitation, which manages the state’s prison system, said that it would “evaluate the decision with an eye towards health and security within our institutions.”

In the meantime, the ruling “will prevent inmates from having years added to their sentences for simple possession, reducing overcrowding and saving $50,000 to $75,000 a year in unnecessary costs,” said David Lynch, a spokesman for the Sacramento County Public Defender’s Office, which brought the appeal.

TELL US, are you surprised prisoners in California can possess cannabis?

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