Words are a part of language lawyers contort in the game of advocacy. Words are important when legislatures write bills that eventually become laws. Laws can be worded in ways that make all or some of their elements vague, ambiguous, or otherwise murky on intent. Loopholes live in the spaces that shroud legislative intent. The remedy is the time consuming and costly petition of the courts for the translation of legalese into English.
I get that legal games will always surround our judicial system. The law is not a finite science that produces repeated results when like ingredients are added. Every legal dispute has its own baked-in, human-influenced DNA. Although the uncertainty of a legal outcome is fertile ground for lawyer jokes, the practice of word-salad bingo disturbs me because important issues are often at risk due to time spent on inane legal chest pounding with no feasible outcome. The mental masturbation of figuring out what a law was supposed to mean is often a legislative puzzle that courts and lawyers endeavor to clarify. When the practice and adjudication of law butts up against criminal justice rights, an infuriating situation is experienced by those directly affected, their families, and their loved ones. When lawyers dance on behalf of inconsequential “prisoner rights” using incarcerated people as debate team pawns, I must protest.
California’s Inmates’ Rights to Possess Pot: Conflicting Court Decisions
Two 2019 California appellate court districts, in separate cases, were asked to decide whether California prison inmates can legally possess marijuana. Is this just an interesting brain teaser, or is it fodder for nothing relevant to prisoners’ rights? In my view, it’s the latter. When I did time in the California prison system, I couldn’t have anyone bring or mail me multiple vitamins. That policy hasn’t changed—so why are two appellate courts even addressing the question of marijuana? Why did the First Appellate District (Solano County) decide that the answer is no, inmates cannot legally possess marijuana, while the Third Appellate District (Sacramento County) found exactly the opposite? Neither decision established case precedent with any real significance.
In People v. Perry (hereinafter Perry), inmate Nisaiah J. Perry had entered a no contest plea, in 2010, to a charge of the unauthorized possession of fourteen grams of marijuana in prison and was sentenced to an additional two-year term tacked on to his existing sentence for another crime. The issue before the court of appeals was whether the court made a mistake when it denied Perry’s petition to recall or dismiss this sentence after the passage of Proposition 64, which legalized possession of up to 25.8 grams (less than an ounce) of marijuana by adults twenty-one years of age and older.
Perry’s possession of marijuana conviction was predicated on California Penal Code section 4573.6(a), which provides
Any person who knowingly has in his or her possession in any state prison . . . any controlled substances, the possession of which is prohibited, . . . is guilty of a felony punishable by imprisonment . . . for two, three, or four years.
According to Perry, “On November 8, 2016, [California] voters adopted Proposition 64, which, with certain limitations, legalized possession of ‘not more than 28.5 grams of cannabis’ by persons 21 years of age or older.” Proposition 64 was silent about extending the legalization of cannabis to incarcerated people.
The filing continues:
On May 4, 2017, [Perry] filed a petition for recall or dismissal of sentence, alleging that his Penal Code section 4573.6 offense involved only 14 grams of marijuana and was therefore eligible for expungement under Proposition 64. The trial court’s May 4, 2017, order denying the petition concluded that [Perry] failed to state a basis for relief because “Prop. 64 did not amend Penal Code section 4573.6, which [to this day] remains a felony offense.
The critical and logical finding in Perry that raises the issue of the intent of voters who voted in favor of Proposition 64 is that
there is nothing in the ballot materials for Proposition 64 to suggest the voters were alerted to or aware of any potential impact of the measure on cannabis in correctional institutions, much less that the voters intended to alter existing proscriptions against the possession or use of cannabis in those institutions. (emphasis added)
You would think the case was closed at this point. But, wait—Perry’s attorneys argued that Proposition 64 didn’t mean what it said, contending that Penal Code section 4573.6 was amended by Proposition 64 and not granting Perry’s petition to dismiss the possession conviction would be contrary to express provisions of Proposition 64 and would not support the will of the voters.
To sell this argument, Perry had the impossible burden of showing that voters approved the possession of marijuana in California prisons even though Proposition 64 made no mention of inclusion or exception for incarcerated people. Perry had to argue that voters somehow extrapolated the inclusion of legal possession of pot in prisons when they voted in favor of the proposition. Our legal system cannot operate with such speculation.
The First Appellate District rightfully decided, based on the clear intent in the language of section 4573.6, that possessing marijuana in prison was a felony because Proposition 64, as codified into law, did not use any words that supported Perry’s argument for his resentencing. The Solano County superior court’s denial of Perry’s petition was upheld by the first district, which concluded that Perry failed to state a basis for relief because the wording of Proposition 64 did not amend Penal Code section 4573.6. As noted above, that statute, on its face, specifically prohibits possession of marijuana—a controlled substance—by inmates.
Issue resolved, right? Not so fast.
On June 11, 2019, in People v. Raybon, (hereinafter Raybon) the Third Appellate District was faced with similar facts as those in Perry, but came up with an opposite decision. In Raybon, five inmates were found with small quantities of pot and were convicted of an additional felony pursuant to Penal Code section 4573.6. They also sought relief from their court sentences using Proposition 64 as the authority, which, again, made the possession of less than one ounce of marijuana no longer a felony in California. A Sacramento superior court trial judge, consistent with the finding in Perry, denied the inmates’ motions to dismiss their convictions. However, when the Raybon case finally wound its way through the appellate procedures to oral arguments, the case had a different flavor: if Perry was vanilla, Raybon was chocolate.
In Raybon, the inmates’ legal defense centered around what it meant to possess cannabis in prison versus what it meant to consume cannabis in prison. They argued that the wording of Proposition 64 made possession no longer a felony since “the electorate specifically addressed the issue of cannabis in prisons and expressly prohibited use, [smoking or ingesting cannabis or cannabis products], not possession” (emphasis added).
The Third Appellate District agreed with the defendants’ right to possession argument, finding that possessing marijuana in prison is okay, but inmates can’t consume it. A hollow victory or what? The key legal issue to be decided in Raybon reemerged as whether the voters had amended Penal Code section 4573.6 by passing Proposition 64 in 2016.
The Raybon court then slipped in its analysis of the question of voters’ intentions as reflected in parts of its decision. In writing about possession, the language of Proposition 64, and the electorates intent, the court channeled the following out of the judicial ethers:
While some may disagree with the electorate’s decriminalization of the possession of a small amount of cannabis, that disagreement does not translate into absurdity. It merely reflects different policy choices and requires us to remain loyal to the plain language the drafters and voters chose in Proposition 64 to amend Penal Code section 4573.6.
The court’s projected intent upon the voters to amend section 4573.6 came from nowhere, and the court becomes more confusing in its finding after stating its opinion: “We cannot weigh in on policy debates.” Further, the Raybon decision cites the Perry decision to distinguish its findings by holding that
we part company with our colleagues in People v. Perry. . . . There may be sound policy reasons for the conclusions reached in that case, but our task is to apply the language of the initiative as written. The remedy for clearly written language that achieves a dubious policy outcome is not judicial intervention but correction by the people or the Legislature. (emphasis added)
In its final decision, the Third Appellate District decided in favor of the five inmates by reversing the trial court’s opinion not to enter orders granting their dismissal petitions and remanded the case back to the trial court to reverse its decision. Now it’s the trial judges’ mandate to grant the five inmates relief from additional sentencing because of their section 4573.6 convictions on the basis that
To say that any exception to relieving the ban on possession means the ban applies to controlled substances no longer banned by division 10 [of section 4573.6] defies the plain meaning as well as common sense. We cannot ignore binding precedent and the plain language of a statute based on the intensity of the Attorney General’s passion to criminalize an act the electorate has decided no longer merits treatment as a felony. (emphasis added)
The net result of the Raybon decision is that California’s prison inmates were within their rights, as determined by the electorate, to possess marijuana, but they are not permitted to use it because smoking or otherwise ingesting it remains a felony. Justice hollered into a legal vacuum cannot be heard.
After all is said, argued, and briefed, it’s ridiculous to have gone through the legal gyrations of the Perry and Raybon cases because no significant precedent issue was resolved and no legal issue rose to any level of any legal significance. Nothing changed in the section 4573.6 penalty for marijuana. Raybon misses the points the Perry court correctly relied upon. The voters did not vote to alter existing proscriptions against the possession or use of cannabis in California prisons. I highly doubt Proposition 64 would have passed if the voters had been asked about that directly. Voters are not that stupid. The Raybon court not only asks a stupid question but also magically answers it in the affirmative.
The final word on the subject that skews Raybon is from the California Department of Corrections and Rehabilitation (CDCR) itself. On June 16, 2019, the New York Times quoted Vicky Waters, a spokeswoman for the CDCR, who reaffirmed what everyone knew at the start of these legal appellate charades: “While the court’s decision is still under review, we want to be clear that drug use and sales within state prisons is prohibited.” Back to square one.
This is my 110th post on criminal justice and prison reform issues. It’s my first post that doesn’t advocate for incarcerated people’s rights. In this instance, the issues raised in Perry and Raybon are preposterous and completely irrelevant to the lives and rehabilitation of the 120,000 incarcerated men, women, and juveniles in California.
We can all agree that voters never intended to extend the right of possession of marijuana without use to California inmates. But neither court addressed access. Discussion was aplenty about possession and consumption—but how is the marijuana supposed to materialize in prison cells and on prison yards? How would inmates legally access the marijuana? It can’t be legally brought or mailed into prisons. Why do courts waste time and money on legal matters that crumble against cement walls of impossibility? What are they smokn’?
Advocates of criminal justice and prison reform share common passions. Their common motivators are that they are driven by empathy and fueled by the human indignation of the system. For example, really seeing the social inequities of money bail systems and wanting to make change can be a daunting project. The power to effect material change means stripping back the infuriating games played by police officers, politicians, prison administrators, district attorneys, trial judges, and appellate court justices. Legal causes such as those advanced in Perry and Raybon are a waste of time and money, and take up docket space for matters without any chance of real criminal justice or prison reform.
Working for measurable changes in the criminal justice system and for substantive prison reform can be frustrating. The work is rife with revealed injustices that are already protected against by laws and irrelevant court decisions, as discussed herein.
Here’s something you may not know: California inmates will have their marijuana and other controlled substances regardless of cases such as Perry and Raybon. The underground market for drugs is easily accessed on the inside. This fact appears to be opaque from within granite appellate courthouses where words are minced and ridiculous opinions get belched onto paper and into the ether.
Because Perry and Raybon resulted in opposite decisions on the same issue, the California Supreme Court must step in to definitively decide the matter. What happens to inmates who are found in possession of marijuana right now? Which appellate route would the Orange County District Attorney take in similar circumstances—Perry or Raybon? District attorneys should not have the power to make such decisions; there must be a clear state standard, and soon.
The bottom-line reality is that the ultimate outcome between the competing appellate districts will have a ho-hum impact on inmates, and rightfully so.
I’d like to hear your thoughts. Please add your comments below.
Image courtesy of 123rf.com
 According to Perry, “Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, was presented to the voters as an initiative to ‘Legalize [nonmedical] marijuana under state law, for use by adults 21 or older. Source: (Voter Information Guide, General Elec. (Nov. 8, 2016), p. 90.”
 1 oz = 28.35 g