California legalized marijuana for persons 21 years of age or older in 2016 when voters passed Proposition 64 (Prop 64). The who, what, when, and where of some of Prop 64’s exceptions, however, are still debatable. Now, the California Supreme Court ended one of the “where” questions when it ruled that cannabis possession in prisons is not included under the law.

Prop 64 permits Californians “to engage in various types of conduct involving cannabis, including the possession of up to 28.5 grams (approximately one ounce), subject to certain exceptions.” The State’s Supreme Court decided five cases filed by incarcerated inmates on August 12. They had asked the court to invalidate their cannabis convictions for defendant Goldy Raybon and five others that made it a felony to possess a controlled substance in a state correction facility.

Writing for six members of the Court, Associate Justice Joshua P. Groban, said that one of Prop 64’s provisions states that it does not amend “laws 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.” One Justice filed an opinion that partly concurred and partly dissented, and another Justice joined in the concurrence.

The opinion begins with the California Attorney General’s argument that possession in prison remains a felony. Defendants argue that the law only punishes smoking or ingesting, but exempts mere possession. The Court found the Attorney General’s reading of the law to be more persuasive. Groban interprets the legislature’s intent as “prophylactic,” and concludes that defendants’ interpretation “would essentially decriminalize cannabis use in prisons.” This was not the intent of voters or legislators.

These cases began when five different inmates were each found in possession of small amounts of cannabis that would be legal outside of prison. Since most of the defendants were in prison for “serious or violent” felonies, the in-prison cannabis possession added several years to each of their sentences. They argued that since one provision of Prop 64 allows prisoners who were sentenced for cannabis-related crimes to ask the court ask for “remedial provisions” that would dismiss their sentences, these provisions should also apply to them

The district attorney said that one section of the Penal Code absolutely makes cannabis products illegal in prison. The trial court agreed, and the defendants appealed to the Third District, where their cases were consolidated. While their appeals were pending, the First District decided a similar case that also denied a prison exemption from Prop 64. But, the Third District held that the Penal Code’s phrase “pertaining to smoking and ingesting” was not intended to include “possession.” This interpretation would allow inmates, for example, to inhale burning cannabis fumes or to apply it topically.

The Supreme Court’s opinion then reviewed the legal framework of its decision. It emphasized that under several statutes, possession of controlled substances or alcohol in any prison or jail is punishable by 18 months to four years. Possession, not just consumption, is illegal.

Groban then reviewed relevant provisions of Prof 64. He said that exemptions to permissible cannabis use include smoking, ingesting or possessing the substance within 1,000 feet of a school, or using the drug in a motor vehicle while driving or “riding in the passenger seat.” He emphasized that Prop 64 does not “amend, repeal, affect, restrict, or preempt any laws pertaining to smoking or ingesting cannabis on prison grounds.” He also outlined the remedial provision for cannabis-related crimes that allows petitions for the dismissal of cannabis-related sentences.

Next, Groban discussed the rules of construction that govern voter initiatives. He emphasized that “their (voter’s) intent governs,” and must be understood where ambiguity exists. He said that in fact, ambiguity did exist here, given that the interpretations of the Penal Code by the First and Third Districts are both “reasonable.” He said, “The question…is whether after Proposition 64, possession of less than an ounce of cannabis in a state correction facility remains a violation of (the) Penal code.” He recounted the debate over whether the words “pertaining to smoking or ingesting” cannabis are broad enough to logically include possession.

After reviewing precedents and dictionary definitions or “pertaining” and “relating,” the judge concluded that “We think it clear that laws barring possession of cannabis in prison relate to drug use,” and that this interpretation is the one that advances the legislative goal of deterring drug use in prison. He said that if the drafters had wanted to change laws about cannabis in prison, they would “have been more explicit about their goals.” He also wrote that the voters would have enacted new laws if they had wished to allow cannabis in prisons.

Finally, Groban wrote, he found the Attorney General’s interpretation to be “more compatible with common sense.” He did not find it plausible that “the electorate would want to preclude laws criminalizing cannabis possession in prison, but permit laws criminalizing cannabis consumption in prison.” What else would a prisoner do with it?

Groban’s opinion also dismisses the interpretations of the dissenting justices for similar reasons. A majority of the court disagreed with the dissent’s policy argument that believes “possession of small amounts of cannabis in prison is inconsistent with the public’s evolving attitude toward the drug.”

He expresses sympathy for the view that the law creates an “extreme disparity” between how the law treats cannabis in and out of prison. In the Court’s opinion, “some may well view an eight-year sentence for possession for less than one gram as unduly harsh. The wisdom of those policy judgments, however, are not relevant to our interpretation of statutory language.” He then reiterates that prosecutors are free to charge offenders with lesser crimes and that the legislature is free to “revisit” the penalties if it wishes to do so.