Should cannabis legalisation apply to prisons? The California debate

16th August 2021

As the legalisation of cannabis continues to spread across various countries – whether that be for medicinal or recreational use – lawmakers continue to grapple with the technicalities of what that actually means. While legalisation measures often outline, in a high degree of detail, what the policy change would mean, the state of California has recently been facing a debate around the legalisation of recreational cannabis – despite the law change coming into effect almost five years ago.

There has been something of a debate in the state around whether the 2016 legalisation of cannabis should also apply to prison inmates. In 2019, the appellate court ruled that inmates are permitted to be in possession of up to 1 ounce (28.5g) of cannabis. Confusingly, however, it wouldn’t be permitted for them to consume the cannabis.

This ruling was recently overturned by the Californian Supreme Court, meaning that the law would not apply to Californians in prison. According to Court’s Associate Justice Joshua Groban, who wrote on behalf of the court, the suggestion that voters intended to decriminalise the possession of cannabis in prisons “seems implausible”.

He continued: “We agree with the¬†Attorney General that if the drafters had intended to so dramatically change the laws regarding cannabis in prison, we would expect them to have been more explicit about their goals.”

A similar decision was reached following California’s 1996 legalisation of medical cannabis. The state became the first to legalise medical cannabis, 20 years later before voters approved Proposition 64 creating the world’s largest recreational cannabis market. However, medical cannabis still remains illegal for prison inmates.

The decision was prompted by the case of five men who were caught with cannabis in their prison cells. The convictions were overturned by the Sacramento-based 3rd District Court of Appeal, ruling that while the consumption of cannabis is illegal in prison, it didn’t specifically apply to possession.

However, the Supreme Court didn’t agree, voting 5-2 to overturn the ruling. Groban wrote, “While perhaps not illogical to distinguish between the possession and use of cannabis, it is nonetheless difficult to understand why the electorate would want to preclude laws criminalizing cannabis possession in prison, but permit laws criminalizing cannabis consumption in prison.”

Nonetheless, there are those that believe that the law isn’t quite as clear cut. Associate Justice Leondra Kruger, writing in partial dissent, agreed that the ballot measure that legalised recreational cannabis in California did not legalise possession within prisons and jails. However, she did point out that it did leave open the question of whether prosecutors could continue to file charges the same way – by choosing between two overlapping felony statutes.

According to Kruger, who was joined in partial dissent by Justice Mariano-Florentino Cu√©llar, voters could have intended for a “limited measure of leniency” while still not technically decriminalising the possession of cannabis in prisons.

Further, according to the Independent, the lower court stated that corrections officers could still ban cannabis possession as a rules violation, as they do for alcohol and tobacco – without seeking to add years prisoners’ sentence.

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