Weed is legal in Washington – but a felony for minors?

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A dime bag of pot won't earn anyone a felony conviction in Washington. Changes to state marijuana laws this past session didn't alter that fact. So why did the enforcement chief for the Washington State Liquor and Cannabis Board, as well as the primary legislator behind new pot regulations, recently state the opposite when it comes to minors?

Last week, a prosecutor in rural Asotin County charged three teenagers for possession of marijuana. Where this would typically be classified as a misdemeanor, with a maximum sentence of three months in jail, county prosecutor Ben Nichols charged them with a Class C felony, which holds a maximum sentence of five years.

To explain his actions, Nichols pointed to new marijuana regulations passed this summer, as part of Senate Bill 5052. The case, first reported by the Lewiston Tribune in Idaho and picked up by the Associated Press, sparked widespread surprise and outrage. Gov. Jay Inslee’s spokeswoman, Jaime Smith, said "this was not the intention that the governor had when working with legislators on this bill."

Days later, Nichols announced that he would downgrade the charges to a misdemeanor, citing advice from the nonprofit Washington Association of Prosecuting Attorneys (WASA). Nonetheless, both he and WASA executive director Tom McBride noted that the changes to the law were “very confusing.”

Compounding that confusion was the initial response from two people who'd presumably know a lot about the new laws. The enforcement chief of the Washington State Liquor and Cannabis Board, Justin Nordhorn, told the Tribune it "does appear" that possessing marijuana as a minor "is a class C felony, based on connecting the dots."

The chief sponsor of S.B. 5052, Sen. Ann Rivers (R-La Center), was quoted as saying the new felony designation was intentional, and meant to curb individuals under 21 from using the drug.

“We needed to send a message to our kids that this is an adult activity," Rivers told the Tribune. "We have to send a message to our kids: This will hurt you in more ways than one if you decide to participate. I’m either hailed as a hero or a terrible person for this bill."

When contacted, a media spokesman for the Washington State Liquor and Cannabis Board said Nordhorn could not be made available for an interview. He nonetheless distanced the organization from Nordhorn's initial analysis of the new law.

“If you put the (marijuana regulation) bills together, it looked like that was the direction they were going,” said spokesman Brian Smith. “But we didn’t issue anything, we’re not the prosecutor. We don’t want to be the spokespeople for what’s going on on a criminal level.”

In a phone interview, Rivers distanced herself even further, blaming the Tribune’s reporter for taking her statements out of context.

“We had a wide ranging discussion where we talked about Schedule 1 drugs broadly, and she took my comments from that,” said Rivers. “I was talking about sending a message to kids about the other risks of using pot, not about it being a felony. If you’re busted with pot as a misdemeanor, that puts your ability to get a federal loan at risk. There’s this idea that it’s pot, that it doesn’t matter. We have a responsibility to educate our kids about the risks.”

This is a far cry from the way her comments were presented in the articles by the Tribune and Associated Press. The journalist who broke the story, Tribune reporter Mary Stone, prefaced Rivers' quote by stating that Rivers “knows not everyone will agree with the tougher penalty for minors” but “hopes people will understand the purpose.”

When she learned that Rivers was challenging her reporting and claiming her statements were not related to new felony charges for minors, Stone laughed.

“That doesn’t surprise me, that you were told that,” Stone said. “I asked her to speak to this large change in how minors in possession are being charged under the new law. That’s how she responded. Everything she said boiled down to the same message on this issue. I’m not sure what other question she could think she was responding to.”

Stone said that Rivers' office specifically requested a copy of the original article and never asked for a correction, even after the Associated Press exposed her comments to national scrutiny. In an email that included Tribune editors, Stone told Crosscut the newspaper stands by its reporting, which quotes Rivers in multiple stories as defending the practice of charging minors as felons if they possess marijuana.

So what does the law actually say? In Section 14 of S.B. 5052, the law states that "no person under 21 years of age [except for qualifying patients] may possess, manufacture, sell, or distribute marijuana, marijuana-infused products, or marijuana concentrates." It goes on to note that "any person who violates this section is guilty of a class C felony." Except, that is, "as provided in RCW 69.50.4014.”

That latter portion of the law makes clear that possession of 40 grams of pot or less is a misdemeanor. WASA's McBride said new pot laws originally contained language that may have increased penalties for minors, but it was removed through a veto by the governor. That may have led to some confusion regarding what was in the final bill, he said.  But in the end, the new law may be convoluted, but the underage possession of pot has not become a felony in Washington.

This should have been obvious to all involved, said attorney Allison Holcomb, the primary author of Washington’s marijuana legalization initiative. She said the fact the Liquor and Cannabis Board, Rivers, and prosecutors are expressing confusion with the law “doesn’t make any sense.”

“This new bill doesn’t create any new penalty provisions for people under 21,” said Holcomb. “I think that’s clear, but it’s not the central point. … The bigger question is why, if there’s reason to be confused by what the law says, why anyone thinks it’s a good idea to treat anyone under 21 as a felon for using marijuana? There’s no reason the prosecutor had to charge these young people with a felony, and I’m glad he changed his mind. I think that’s the real discussion that needs to happen, why anyone would think that’s a good idea.”

In response to the Asotin County prosecutor's announcement that the aforementioned felony pot charges would be reduced, Rivers released a statement applauding the decision Tuesday.

“This is a complex issue so I can understand the challenges our justice system may face in interpreting what the law does and doesn’t allow,” Rivers said in the statement. “The section of the bill tied to the original charges came from an amendment a colleague in the House offered at the last minute. I’ve asked the state attorney general for an opinion on the matter. I want to ensure this is properly applied moving forward.”

Rivers told us that she expects the marijuana regulations to be modified further in the upcoming legislative session, to reduce confusion on this issue.


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About the Authors & Contributors

Drew Atkins

Drew Atkins

Drew Atkins is a journalist and writer in Seattle, and the recipient of numerous national and regional awards. His work has appeared in the New York Times, Seattle Times, The Oregonian, InvestigateWest, Geekwire, Seattle Magazine, and others. He also previously served as the managing editor of Crosscut. He can be contacted at drew.atkins@crosscut.com.