Marijuana

Washington Prosecutor Explains Why He Charged Teenaged Pot Smokers With Felonies

Ben Nichols, who later changed the charges to misdemeanors, argues that the state's marijuana laws are needlessly confusing.

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KLEW

I recently had an email exchange with Ben Nichols, the prosecuting attorney for Asotin County, Washington, in which he explained why he initially concluded that underage marijuana possession in that state had to be charged as a felony. I still think it's pretty clear that underage possession remains a misdemeanor, as the Washington Association of Prosecuting Attorneys concluded. But Nichols persuasively argues that careless drafting by state legislators made the question harder to answer than it should be.

Medical marijuana bills enacted earlier this year, S.B. 5052 and H.B. 2136, both stated that "no person under twenty-one years of age [except for qualifying patients] may possess, manufacture, sell, or distribute marijuana, marijuana-infused products, or marijuana concentrates, regardless of THC concentration." It's not clear why that language was added, since underage possession already was illegal. "Unfortunately," says Nichols, "we cannot simply say the Legislature got it wrong and conclude that the 'underage possession is illegal' language is surplusage."

If we assume that the language referring to underage possession accomplished something, what was it? Nichols, after studying the statute, concluded that it boosted the penalties for that offense. The reference to underage possession appears in RCW 69.50.4013, which says, "Except as provided in RCW 69.50.4014, any person who violates this section is guilty of a class C felony." RCW 69.50.4014 says "any person found guilty of possession of forty grams or less of marihuana is guilty of a misdemeanor," except for possession with intent to distribute. Nichols notes that the medical marijuana legislation implicitly "amended 4014 by making it inapplicable to persons over 21." The crucial question is whether that provision still applies to people younger than 21.

Nichols argues that the phrase "regardless of THC concentration" created a new definition of marijuana that seems to apply only in the context of underage possession. In charging a minor with misdemeanor marijuana possession under RCW 69.50.4014, he asks, "how do I incorporate the 'new' definition of marijuana," which appears in RCW 69.50.4013?  "I can't help but scratch my head when I see that the legislature saw fit to amend 4014 to remove the archaic spelling of 'marihuana' but dropped the age/THC elements into the broader 4013," he says. "Since these two 'new' elements apparently only modify the restrictions in 4014, why not make it crystal clear?"

Nichols says "any number of lawyers and at least two judges in my community read the law to have the impact of repealing by implication 4014." The enforcement chief of the Washington State Liquor and Cannabis Board seemed to agree, saying, it "does appear" underage possession "is a class C felony, based on connecting the dots." The governor's office, meanwhile, did not contradict that interpretation, saying only that "if prosecutors are finding that this language allows them to do this, that was not the intention." Even Sen. Ann Rivers (R-La Center), the chief sponsor of S.B. 5052, was quoted as confirming that the legislature had changed underage possession from a misdemeanor to a felony, although she later told me "it's not ever been anyone's intent to create teen felons." 

Nichols, who says he supports marijuana legalization, concludes that "anyone who reviews the sorry state of the laws that we are struggling with must admit that they are confusing, to say the least." He nevertheless has decided, based on advice from "legal scholars who I greatly respect," that "I can still charge minors with misdemeanor possession." He says that's "a significant relief to me," since he can "once again use this tool to deal with our juveniles who are struggling with controlled substances." 

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  1. I’m guessing he got more of a pushback than he expected, and now has concocted this story about hand-wringing over the felony charges he was “forced” by the legislature to bring against kids.

  2. What happened to the days when a teenager was caught with a joint or beer their parents were contacted and left to handle the problem? Samd with igs. Hell,in high school lots of people smokeed or rubbed tobacco. Arresting a kid for these things was nerver thought of as a option.

    1. OT BTY,when I was in high school we had archery in P.E class and several guys brought in their hunting bows.

    2. . . . or rubbed tobacco

      Did they have chewing alcohol back then too?

  3. careless drafting by state legislators made the question harder to answer than it should be.

    If the legislature had its pay docked every time that happened, their pay would be in minus figures.

    1. My solution would be to void every law found defective — internally inconsistent, inconsistently enforced, confusing, vague, inconsistent verdicts. Inconsistent enforcement would include rare enforcement, such as speeding laws. If multiple laws contradict each other, they are all voided.

      And it’s up to juries to decide if laws are defective in this way, not judges, since it’s lay people who have to understand them to obey them. It would open up a new jury nullification process — they could decide the person may have violated some aspect of the law, but the law itself is defective, thus void, for this defendant and all past and future defendants.

      It really annoys me when judges amend laws based on legislative intent. If the legislature intended something but didn’t make it clear, they need to step up their game and try again.

      It also annoys me that jury verdicts must be unanimous, but appeals courts can be divided. If these so-called experts, especially the ultimate experts on the Supreme Court, can’t agree unanimously on what a law means, that law should be voided as defective. How a 5-4 decision can be considered good enough for experts is beyond me.

  4. They made me do it with their confusing legislatively language! /wipes tear.

    This reads as though this guy is dying to find anything to put kids in the slammer.

    Sigh.

    /silently turns woodchipper on.

    1. You know that adding a silencer to your woodchipper makes it an assault woodchipper and subjects you to greater penalties, right?

      1. He didn’t add a silencer; he merely turned it on silently.

  5. Our natural rights do not increase at the age of 21. Ah, I’m 21 now my natural rights include the right to smoke some reefer !!
    They are the same at birth and at 17, 22, 44, and 69.

    Just another reason why marijuana should be re-legalized but not taxed and regulated by jackasses

    1. 21?

      Who let the children in?

  6. it’s quite possible he was high when originally interpreting the statute, thus explaining his initial confusion.

  7. “Unfortunately,” says Nichols, “we cannot simply say the Legislature got it wrong and conclude that the ‘underage possession is illegal’ language is surplusage.”

    “Unfortunately”

  8. “legal scholars who I greatly respect,”

    His brother in law

    1. He doesn’t respect El Cunado.

  9. He says that’s “a significant relief to me,” since he can “once again use this tool to deal with our juveniles who are struggling with controlled substances.”

    Rather than, you know, being *forced* to use it as a tool to destroy their lives?

    1. Yeah, because having a drug conviction makes it so much easier to get a job and college loans. Someone is a tool and it’s not the law.

  10. ” But Nichols persuasively argues that careless drafting by state legislators made the question harder to answer than it should be.”

    I thought that the rule of lenity required that ambiguous criminal statutes be construed favorably to the defendant. So if the legislature didn’t bother to make clear if something is a felony or a misdemeanor, then it’s a misdemeanor.

  11. he can “once again use this tool to deal with our juveniles who are struggling with controlled substances.”

    the struggle isnt with the substances themselves (except in some rare cases), but rather with this douchebag and his ilk. also, ive never heard of the “rule of lenity”. that sounds like a basic part of being a reasonable human, and also way too generous a thing for our government to do

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