Could one have predicted the basic result that the Court issues today: that, notwithstanding the passage of Proposition 64 (which generally legalized the possession of marijuana), it remains illegal to smoke weed in prison? Sure. The text of the statute is probably broad enough to facially decriminalize the thing, but given that no one probably intended that inmates be allowed to dope up in prison -- and that there's a part of the statute that says (albeit somewhat ambiguously in light of the underlying marijuana statutes) that it does not affect “[l]aws pertaining to smoking
or ingesting cannabis or cannabis products on the grounds of, or
within, any facility or institution under the jurisdiction of the
Department of Corrections and Rehabilitation" -- it's not surprising that the California Supreme Court holds that marijuana is still illegal in prison.
But what probably is surprising -- or at least what I (for one) didn't anticipate -- is the partial dissent of Justices Kruger and Cuellar. Here's what they say:
"I agree with the majority that Proposition 64, fairly read,
did not legalize cannabis possession in California’s prisons and
jails, even as it either overrode or lifted state and local
prohibitions on possessing small quantities of cannabis in most
other places.
It is, however, a separate question whether, after
Proposition 64, prosecutors may continue to charge in-prison
cannabis possession exactly as they have been — that is, by
choosing at will between two overlapping felony statutes, one of
which carries steeper penalties than the other, and whose
coverage is expressly tied to the scope of state-law prohibitions
applicable outside of prison. The majority concludes that
prosecutors are still permitted to choose (though the majority
encourages them to make their choices wisely). (Maj. opn., ante,
at pp. 30–31, 43–45.) Because I do not think the particular
reasons the majority gives for extending this permission can be
squared with the statutory text, and because the majority’s
conclusions on this subject are unnecessary to resolve this case
in any event, I do not join this portion of the majority opinion."
Interesting!
The whole "majority encourages [prosecutors] to make their choices wisely" thing stems from this part of Justice Groban's opinion for the Court:
"We are sympathetic to the view that section 11362.45(d)
creates extreme disparity between how our legal system treats
the possession of cannabis generally versus the possession of
such a substance inside a correctional facility. That is also true
of many other substances, including alcohol. (See Pen. Code, §
4573.8 [unauthorized possession of alcohol in prison constitutes
a felony].) Some may well view an eight-year prison sentence
for the possession of less than one gram of cannabis (one gram
is the approximate weight of a single paper clip or a quarter
teaspoon of sugar) as unduly harsh. . . .
Our interpretation notwithstanding, prosecutors of course
retain discretion whether a person found in possession of a small
quantity of cannabis on prison grounds warrants felony
treatment. (See People v. Lucas (1995) 12 Cal.4th 415, 477
[“Prosecutors have broad discretion to decide whom to charge,
and for what crime. . . . ‘[A] district attorney’s enforcement authority includes the discretion either to prosecute or to decline
to prosecute an individual when there is probable cause to
believe he has committed a crime’ ”].) As defendants note, “there
are already [prison] regulations in place . . . to punish and deter
this conduct.” Cannabis possession in prison remains classified
as a serious rules violation that is subject to a custody credit
forfeiture of between 121–150 days (see Cal. Code Regs., tit. 15,
§ 3323, subd. (d)(7)), which effectively translates into an
additional four to five month jail sentence. Such conduct can
also result in substantial loss of visitation rights, including up
to three months of no visitation and three additional months of
no contact visitation for a first offense, with increasing loss of
visitation rights with each consecutive offense. (See Cal. Code
Regs., tit. 15, § 3315, subd. (f).) Moreover, depending on the
nature of the defendant’s sentence, a rules violation involving
the possession of cannabis could also impact parole eligibility.
(See Cal. Code Regs., tit. 15, § 2281, subd. (c)(6) [circumstances
tending to show unsuitability for parole for life prisoners include
“Institutional Behavior. The prisoner has engaged in serious
misconduct in prison or jail”].)
In cases where prosecutors do elect to pursue criminal
punishment, they may consider a charge under Penal Code
section 4573.8, which carries a lower sentence than Penal Code
section 4573.6.20
(See ante, at p. 7; see also Whalum, supra, 50
Cal.App.5th at p. 5, rev. granted [“As cannabis is a drug and a controlled substance regulated in division 10 of the Health and
Safety Code [citations], both statutes have been used to convict
prisoners who possesses cannabis” (italics omitted)].)
Alternatively, depending on the defendant’s circumstances, a
prosecutor might recommend a disposition that does not require
a prison term. (See Pen. Code, § 1170, subd. (h)(4) [“Nothing in
this subdivision shall be construed to prevent other dispositions
authorized by law, including pretrial diversion, deferred entry
of judgment, or an order granting probation pursuant to Section
1203.1”].) Similarly, in cases where a defendant is convicted
under Penal Code section 4573.6 and has a prior strike (as most
of the defendants here did), the prosecution may move to dismiss
the strike allegation, or the trial court may elect to do so on its
own motion. (See Pen. Code, § 1170.12, subd. (d)(2), 1385, subd.
(a); Romero, supra, 13 Cal.4th at pp. 529–530.) Finally, in cases
where the defendant is already serving a sentence for a prior
conviction under Penal Code section 4573.6, the prosecution or
prison officials might recommend that the court recall the
sentence previously ordered and resentence the defendant in the
interests of justice pursuant to Penal Code section 1170,
subdivision (d). (See Cal. Code Regs., tit. 15, §§ 3076–3076.2.)"
The majority is satisfied -- from a policy perspective -- that these safety valves are sufficient. Not so much for Justices Kruger and Cuellar.
Regardless, that's the law now. In any event, everyone agrees: No free weed -- nor freedom to ingest it -- in prison.
I did have one additional doctrinal reaction to the majority's opinion that I thought worth sharing. One of the big reasons that the majority advances for why its interpretation is superior to that of the dissent is framed as an analysis of voter intent. It's contained on pages 35 to 38 of the majority opinion. I'll set forth the exact analysis at the end of this post (it's long), but basically, the majority says that although the dissent has a facially plausible reading of the statutory language, there's no way that an uneducated voter would be able to intelligently parse the statute in the legalistic manner advanced by the dissent.
This strikes me as an erroneous way to go about statutory interpretation in initiative and referendum cases.
I totally agree with Justice Groban that lay voters would be hard pressed to be as fancy as Justices Kruger and Cuellar. But that's equally true, I suspect, for state legislators. When interpreting a statute, I don't think that it should matter how the statute was enacted; e.g., through initiative or through the Legislature. The text says what the text says in both cases. And while I'm of the view (contrary to many in the conservative camp) that intent and purpose matter, I think you should analyze intent and purpose the same way in both cases. Yes, your average voter is perhaps not as legally sophisticated as your average state senator. But that shouldn't mean that a statute means one thing if passed through an initiative but another if passed by the Legislature. Similarly, you can't (or shouldn't) make arguments that because "lay voters" enacted a particular statute, we should dumb down our statutory analysis or find it more implausible that such individuals could intend complicated linguistic analysis. It shouldn't matter who passed a statute. It means what it mean. Do we sometimes reject interpretations that we conclude couldn't possibly have been intended? Sure. But we shouldn't say that a particular linguistic analysis is particularly unlikely by focusing -- as the majority opinion does -- on what a "voter" would perceive in light of their relative lack of legal sophistication. Just say, if necessary, that anyone who drafted, passed or voted for such legislation was unlikely to intend such a result.
(Here's the full text of what I'm talking about from Justice Groban, with footnotes and citations often omitted. Some of the paragraphs are over a page long; that's Justice Groban's doing, not mine.):
"The dissent disagrees, concluding that the language is, in
fact, quite complicated. The dissent concludes that the voters
were asked to journey through a phalanx of complex statutory
cross-references and legal conclusions and, at the end of the
journey, would have concluded that Proposition 64 might
actually “amend, repeal, affect, restrict, [and] preempt” some
laws prohibiting the possession of cannabis in prisons, but not
others. The journey goes something like this: The dissent first
contends that when voters were told Proposition 64’s key
legalization provision would have no effect on in-prison
possession offenses, they would have understood that language
to mean the initiative would have no effect on convictions under
Penal Code section 4573.8, but might have an effect on
convictions under Penal Code section 4573.6. In the dissent’s
view, voters would have come to this conclusion because they
would have understood that section 11362.45(d)’s “no effect”
clause references Proposition 64’s legalization provision (§
11362.1), but not the amendments made to section 11357. They
then would have understood that Proposition 64 removed
section 11357’s previous general prohibition on cannabis
possession and replaced it with more narrow prohibitions. They
then would have realized that section 11357 is part of division
10 of the Health and Safety Code. And they would have noted
that Penal Code section 4573.6 cross-references the prohibitions
in division 10. (See Pen. Code, § 4573.6, subd. (a) [making it a
felony to possess a “controlled substance[], the possession of
which is prohibited under Division 10”].) Voters would then
realize that because division 10 no longer contains a general prohibition on cannabis possession (it instead conforms to
Proposition 64’s legalization provision by prohibiting a more
narrow class of cannabis-related crimes involving persons under
the age of 21 and quantities in excess of 28.5 grams), and
because section 11362.45(d) fails to state that the amendments
to section 11357 were not intended to affect prison offenses (it
only cross-references section 11362.1’s general legalization
prohibitions), cannabis possession might no longer qualify as a
violation of Penal Code section 4573.6.
But the work of the voter would still not be done. From
that, the voters would then deduce that whether Proposition 64
affects convictions under Penal Code section 4573.6 will
ultimately depend on how courts interpret the phrase “the
possession of which is prohibited under Division 10” (which the
dissent declines to do here). More specifically, they would
understand that if the courts ultimately side with the Fenton’s
line of analysis (see ante, at pp. 28–29), then criminal
convictions under Penal Code section 4573.6 would be
prohibited under most circumstances, but if courts side with
Taylor’s line of analysis (see ante, at pp. 29–30) criminal
convictions under Penal Code section 4573.6 would remain
unaffected by Proposition 64.
While the dissent has come up with an intricate
interpretation, we do not think it is the most reasonable
interpretation of the initiative. (Cite) Simply put, we are dubious that when
voters were told Proposition 64’s new legalization provision
would have no effect on laws regulating possession of cannabis
in prison, they would have understood that language to require the complex series of deductions and statutory cross-references
that the dissent’s interpretation is built upon. (See Valencia,
supra, 3 Cal.5th at pp. 370, 371 [while voters are presumed to
“ ‘study and understand the content of complex initiative
measures’ ” “it is unreasonable to presume that the voters had
such a ‘degree of thoroughness’ that they . . . analyzed various
provisions using the acumen of a legal professional”].) We do
not read the language, “Section 11362.1 does not amend, repeal,
affect, restrict, or preempt . . . [¶] . . . [¶] . . . [l]aws pertaining to
smoking or ingesting cannabis . . .” (§ 11362.45(d)) as meaning,
as the dissent seems to read it: “We hereby (might) do away
with the more serious criminal sanctions for cannabis
possession in a penal setting under Penal Code section 4573.6,
but people in prison may continue to be prosecuted and receive
shorter sentences pursuant to Penal Code section 4573.8.” If
Proposition 64 were truly intended to have no effect on
possessory offenses under Penal Code section 4573.8, but
potentially preclude possessory offenses under Penal Code
section 4573.6, we would expect the text to say so in a less
convoluted manner."
