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.



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."