Pot Penalties May Be Modernized

A new bill in Sacramento would allow prosecutors to charge growers and trimmers with a misdemeanor instead of a felony than mandates prison time.

This month, thousands of California’s pot growers are tending to their gardens, laying dirt, planting clones, and running irrigation for another billion-dollar outdoor cannabis crop. Yet come fall, hundreds of them will reap not the sticky icky, but a whirlwind of pain in the form of arrest and jail. Smoking marijuana may be more fashionable than ever in the Golden State, but cultivation penalties haven’t changed since the height of the drug war thirty years ago.

Seeds of change are starting to germinate though, in the form of a bill to alter the penalties for cannabis cultivation. Sponsored by San Francisco Assemblyman Tom Ammiano, AB 1017 aims to give prosecutors more discretion in how they charge weed growers and processors, called “trimmers.”

According to the bill’s author, Mendocino County District Attorney C. David Eyster, mom-and-pop trimmers — many of them economically desperate victims of the country’s recession — currently face a felony punishable by sixteen months, or two or three years in prison for manicuring buds. That’s because existing law “requires that every person who plants, cultivates, harvests, dries, or processes any marijuana, or any part thereof, except as otherwise provided by law, be punished by imprisonment in the state prison.”

AB 1017, by contrast, would make pot cultivation a “wobbler,” allowing prosecutors to charge growers and trimmers with a misdemeanor punishable by probation up to one year in county jail. Ammiano stated that AB 1017 more properly aligns the punishment to the crime. As of this year, possessing up to one ounce of pot results in an infraction and $100 fine, but growing that same ounce of pot is treated as a felony.

Eyster wrote in a letter to the state assembly that the bill gives prosecutors more options, allowing them “to adjust charges to the magnitude of the case, rather than a one-size-fits-all felony.” He stated that he sees a lot of trimmer cases in Northern California’s premiere pot growing region: “These are the down-and-out, unemployed people located throughout the county in need of income in a sour economy with no prior criminal record who are arrested sitting around a table earning money by trimming marijuana buds.”

Charging trimmers with a mandatory felony makes no sense, he wrote. “To some, they are field workers who are being used and victimized by the people who set up large-scale operations from a distance and who then reap the financial benefits if the business finishes the grow year without law enforcement detection.”

AB 1017 passed the Assembly Public Safety committee on May 3 and goes to the assembly’s Appropriations committee this week. If AB 1017 passes Appropriations, it’ll get a full assembly floor vote and then a hearing in the senate.

Opponents of the bill include the California District Attorneys Association, the California Police Chiefs Association, and the California Narcotics Officers’ Association. The narcotics officers contend that AB 1017 will boost organized crime. “Legislation, such as AB 1017 that reduces the penalties for marijuana cultivation, amounts to an improvement in [organized crime’s] business climate and could only cause a continued increase in the influx of organized criminal enterprises into the marijuana cultivation business,” the association stated in a letter to the assembly.

But Eyster argued that AB 1017 does not help gangsters, it actually gives prosecutors more discretion to focus on the big fish. “Marijuana cultivation statutes do not discriminate between major cultivation operations and illegal personal backyard gardens,” he wrote. “The DA should be given the discretion to characterize the different attributes of specific cultivation/processing cases and charge the larger operations as felonious conduct and the smaller gardens as misdemeanors.”

According to the California Public Defenders Association, AB 1017 lets DAs “prosecute small growers, but not inflict upon them the lifelong burden of a felony conviction. This bill simply makes sense in today’s world.”

On May 11, the Assembly Appropriations committee concluded in an analysis of AB 1017 that although its fiscal effects would be unknown, it could generate “potentially moderate” annual savings to the state. In 2009 and 2010, a total of 260 people were put in state prison on pot cultivation charges, the committee analysis concluded. “If this number was decreased by 25 percent, annual state savings would be in the range of $1.5 million.”

Jeffrey Miron, senior fellow at the libertarian Cato Institute, estimates that California — a state with a $10 billion budget deficit — continues to spend about $1 billion per year on ineffective marijuana prohibition.

Despite that heavy toll, legislators are likely to focus on how AB 1017 creates a dreaded state-mandated local program because it may result in people being sent to county jail rather than state prison for cultivation offenses. Any bills with new local costs are getting a cool reception in the capital, Ammiano’s spokesman Quintin Mecke told Legalization Nation.

Representatives need to hear about the necessity of AB 1017 from their constituents, especially dispensary owners, patients, and growers. Patients with a valid doctor’s recommendation for marijuana have an affirmative defense against prosecution for growing or possessing pot. But that doesn’t stop zealous sheriff’s deputies and police from arresting medical growers and trimmers. Prosecutors need options when these cases come up, Mecke said. “This is cultivation, and at the end of the day it crosses every aspect of marijuana, and in particular medical marijuana,” he said.

Seeds & Stems

The City of San Jose received $290,000 in medical-pot sales tax revenue in March, and city leaders face a $115 million budget deficit next year, and yet they plan to shut down lawfully operating clubs.

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