California Law Allows Prisoners to Possess Marijuana But Not Smoke It, Court Says
June 18, 2019

Every once in a while we read a legitimate news story that would fit well in The Onion. That is the case with a recent story from titled “California prisoners can now legally possess pot. They just can’t smoke it.”

On June 11, a California appeals court reversed the convictions of five incarcerated men convicted of possessing marijuana in prison. The court held that California law only prohibits smoking and ingesting cannabis in prison; it does not, at least expressly, prohibit possession. Further still, California has legalized possession of marijuana via Proposition 64 and Health and Safety Code section 11362.1, and there is no exception for those incarcerated. Accordingly, per the court, possession of marijuana is legal within prisons, while smoking it or ingesting it remains a felony.

The California appeals court was fully aware that its ruling created an unusual result. The court did not deem the result absurd, however, instead using the case as an opportunity to send a direct message to the legislature to pay closer attention to detail: “[t]he question of law we review de novo is whether the plain language of the statute leads to an absurd result. We conclude it does not. A result is not absurd because the outcome may be unwise. Cognizant of the humble role of the courts in construing statutes, not rewriting them to subscribe to our version of sound public policy, we reverse the trial court’s denial of defendants’ petitions for relief under Health and Safety Code section 11361.8.” In other words, it is the legislature’s job to make policy decisions, and the court’s job to enforce those policy decisions, sound or not. If the legislature wants to make its marijuana policy towards prisoners more coherent, it should go ahead and do so.

The California appeals court’s full decision can be read here.

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