California: cannabis possession in prisons no longer a crime

A California Court of Appeal acquitted five prisoners accused of cannabis possession. This case law seems to indicate that cannabis possession in prison is no longer illegal. However, possession and consumption remain prohibited by the internal regulations of prisons.

Between legality and prohibition

The prisoners were accused under a 1949 law that banned «illicit substances» from prison grounds. However, since the legalization of recreational cannabis in California, cannabis is no longer considered an illicit substance. The appellate court judge ruled that under the language used in Proposition 64 – the law legalizing recreational cannabis use in California that was passed by popular vote and it actually entered into force in 2018 – possession of cannabis is decriminalized below 28 grams. It is therefore no longer a crime.

However, although the possession of cannabis is no longer a crime, it can still be banned by prison internal regulations. «The fact that the electorate no longer characterizes the possession of small amounts of cannabis as criminal conduct does not prevent prison authorities from banning possession to maintain order and safety in prisons and other correctional institutions,» explains the judge. The difference lies in the fact that the applicable sanctions are limited to those provided for by prison regulations – solitary confinement, for example – but cannot be subject to legal proceedings and criminal sanctions.

This verdict only concerns possession. Indeed, the defendants were only accused of cannabis possession and not consumption or trafficking. Therefore, while it is clear that cannabis possession, even in prison, is decriminalized, the legality of consumption has not been discussed. In France, a report The French Observatory on Drugs and Drug Addiction (OFDT) describes cannabis consumption in prisons as «massive, even endemic.» The average is three joints per day.

In any case, the California verdict raises the question of «sensitive» populations. Beyond prisoners, the legalization of cannabis poses problems for other categories of people, such as military personnel and drivers. If possession and consumption of cannabis are no longer covered by the penal code in California, certain socio-professional categories must be subject to codes of ethics and safety precautions.