Author Archives: claremckendry

What About the Children Who Grow Up?

Occasionally, I’ve been asked why I chose to focus on children as my topic for Drug Law and Policy Blog. For many who knew me prior to law school, my interest in juvenile issues came as somewhat of a surprise. If you had asked me even two years ago what kind of law interested me, criminal juvenile issues would have been a) far too specific for my overwhelmed first-year brain to handle and b) not even in the realm of possibility. I’m just not a person who has ever enjoyed hanging out with kids. My motivation for choosing to focus on juvenile issues for Drug Law and Policy therefore came from a place of curiosity, not an already known passion. Over the course of the semester, both through writing for this blog and working extensively with youth in juvenile hall, the meaning behind my interest in juvenile law has shifted substantially. The two perspectives I have, the one I had when I began writing What About the Children and the one I established over the course of several articles, are in many ways very different, though I think each are equally relevant.

As I began writing, I believed that it was important to talk about the children because the effect of legal adult-use marijuana on children is one of the most common arguments used against legalization. I thought if I could shed some light on how much prohibition negatively impacts kids, then a lot of those counter arguments could be muted. My opinion at the time was that talking about the effects of legalization on children was only one way to discuss legalization. While that opinion hasn’t changed—surely we need to sort out taxes, how legal marijuana is going to be distributed and consumed, and what we mean when we talk about “legalization”—I’ve developed a more sincere belief that when we talk about any change in criminal law, we have to talk about the kids.

Talking about kids is important not because children are innocent or deserve special treatment but because children grow up. They grow into the adults that will live in the world tomorrow. I don’t mean this in a lovey-dovey, “the children are our future” sense, just that literally, the children of today will run the government—and populate the prisons—of tomorrow. So when laws or policies adversely affect children, or a specific group of children, that adverse affect carries on into our future.

Per labeling theory, as I discussed a couple installments ago, it then follows that children who are prosecuted for marijuana possession and see themselves as criminals, on the outside of normal society, are more likely to continue to see themselves that way into adulthood. This may mean those adults feel less obliged to follow whatever framework we instate for legal adult use, and instead function within the black market. It also means they may be more likely to function generally, not just in reference to the legal marijuana market, on the fringe of society, and be more likely to continue to be criminally involved.

Labeling theory creates enough of a propensity problem that we should consider changing how we address criminally involved youth. Yet there is another, compounding factor that needs to be discussed before we can fully grasp the vicious cycle of our criminal justice system. That factor is race. As I mentioned in my last article, we know suspensions and expulsions adversely affect students of color. For those of us living in the United States with an internet connection, it should come as no surprise that we also know the adult criminal justice system adversely affects people of color, both in incarceration numbers and treatment by police. Working in Santa Clara County, I have firsthand knowledge of how overrepresented Latinos are in the California criminal justice system. Yet when I began researching the numbers, I came into a bit of a problem. According to the statistics, Latinos are not egregiously over represented. By the numbers, Latinos make up 38% of Californians and 41% of incarcerated individuals—which is over representation, but nowhere near as egregious as the 6% to 27% Black Californians represent, respectively. Suspensions and expulsions were similarly only slightly disproportional when it came to Latinos.

So I tried going local with my research. Finally, I found this Santa Clara County Juvenile Justice System Annual Report, and things made sense. The report is very informative and I highly recommend reading through its entirety, but for summation purposes this table speaks volumes.

Screen Shot 2015-05-12 at 10.50.39 AM

Much like the statewide statistics I’d found earlier, the Santa Clara County statistics indicate a huge disparity between the Black population and arrest rate. However, the disparity between the Latino population and arrest rate is more impactful given the overall population. The above table, and the report at large, indicates that Latino youth in Santa Clara County are 3.7 times more likely to be arrested than their White counterparts. Arrest rate doesn’t necessarily represent prosecutions, or in the case of juveniles, petitions, but sociology and labeling theory tells us the damage is done when a youth is arrested. The mere fact that children of color are more likely to be arrested, regardless of whether their case ends up on some kind of permanent record, is cause for concern. Youth who are arrested are more likely to see themselves as outcasts and criminals, and are more likely to disregard laws. Combine this with the known bias of police officers to target people of color, and it is no wonder the United States has giant problem incarcerating people of color. Given the disproportionate arrest rates of Latino youth in some counties (table above), that problem will be growing in years to come, when arrested teenagers turn into incarcerated adults.

Labeling theory, and the ripple affect it has on children who grow up, is why I think every criminal law discussion needs to include the kids. The impact arrests alone have on children is why I think legalizing marijuana for adult use is such an important step towards reforming our criminal justice system. While adult-use marijuana (obviously) won’t legalize possession for children, it will allow marijuana crimes to simulate alcohol or tobacco crimes more. Underage drinking, while serious, does not often result in arrests. In fact, I could nary find a study, document, or statistic about underage drinking arrest rates. Instead, what are readily available are studies on the risk and damage of underage drinking, treating the issue like a mental health problem. Taking a mental health approach to substance use will have a net-helpful effect on our kids, without the damage caused by arrest and (juvenile) prosecution. Further, if California chooses to maintain its current framework for simple possession, requiring infractions rather than misdemeanors for possession of up to an ounce, arrests, and the harm that comes with arrests, are almost entirely avoided.[1]

For those of us drafting polices for legalizing adult-use marijuana, juvenile issues are likely not a priority. The nitty-gritty issues of licensing, land use, marijuana business, and DUI enforcement are complex enough and important enough to occupy a significant portion of time. But for those of us voting, and those of us who may hesitate to support legal adult-use marijuana due to the access it grants children, juvenile justice issues must be discussed. The criminal justice system has incredible power over all our youth, both those who have fallen under the jurisdiction of the system and those who live cautiously to avoid contact. It is important for us, as adults and voters, to ensure that the juvenile justice system does not do unnecessary damage to our children.

Clare McKendry for Drug Law and Policy – Follow us on Twitter @DrugLawPolicy

[1] In some jurisdictions, police officers are not required to issue uniform traffic or infraction tickets (New York is one), and may technically be allowed to take people into custody for infraction offenses (though it rarely happens). It’s further worth mentioning that if someone with a marijuana infraction fails to appear for a court date, a bench warrant will usually be issued, and the next time the person comes into contact with police they will be arrested.

What About the Children Who Need Public Benefits?

In my last article I discussed some of the ways marijuana convictions can prevent older “children” from getting financial aid. Financial aid is just one of many public benefits that take marijuana convictions into account. Conveniently, at least for discussion purposes, the guidelines for financial aid are spelled out, and it is relatively easy to look up how a marijuana conviction affects a student receiving aid.

There are many other public benefits that are less clear. Federal housing subsidies, like Section 8 housing, is complicated enough that one of my Drug Law and Policy colleagues, Ruby Renteria, is working on only that issue. Today, I am going to focus on two public benefits that affect children most directly: the foster care system and public school access.

Foster care in the state of California is a fairly difficult thing to discuss as far as across-the-board policies, since counties share and move children around depending on where beds are available. To be compatible with the system, foster assistance programs are often area-based. The one that I am most familiar with—and which I will use for purposes of this brief discussion—is the Court Appointed Special Advocates, or CASA, program. CASA appoints individuals to be constant advocates for youth in the foster system. Since lawyers and child protective services agents may change, the idea behind CASA is to give a child someone who will be more constant and not have any agenda other than supporting the child.

Programs like CASA are, perhaps unsurprisingly, sparsely funded and difficult to implement where there is need. It takes time to train advocates to understand the needs and concerns of the average foster child. Children with exceptional needs, like those with criminal records, tend to be harder to place with a CASA, and given the number of children without special needs who are awaiting a CASA, those youth with criminal records become less of a priority. In some instances, it may even disqualify the youth from receiving benefits.[1] So, if a child has a criminal record, or even a permanent non-criminal record of some kind, involving marijuana offenses, it will likely be a challenge for them to receive equal or optimal treatment in the foster system.

A public benefit that affects far more youth in California, however, is public school access. The data I gathered focuses on high schools, since high-school-aged children are probably using marijuana most. I also focus on high school because it, as an American institution, is held up on an alarmingly high pedestal. Homecomings, proms, and grandiose graduation ceremonies are featured in just about every “classic American” teen movie I care to think of. Being expelled from high school, or suspended and excluded from such traditional markers of acceptance, is therefore exceptionally disruptive.

To understand what happens if a child is caught with marijuana at school, it is perhaps best to have a bit of a primer in the California public education system and its disciplinary practices. Unlike foster care and its auxiliary programs, California education data is fairly accessible, and be forewarned: this is a bit of a downer.

Thousands of children are expelled from high school each year, and hundreds of thousands are suspended. California has been criticized over the last several years for its high rates of school discipline, so there has been significant effort to reign in overzealous districts, and the numbers have been dropping. And certainly, many students are expelled for meritorious reasons, like bringing weapons to school or sexual assault. However, the California Education Code’s grant of broad discretion to school administrators allows many children accused of lesser offenses to be uprooted and booted from their home school districts. Being forced to move away from their home school districts means that, among the confusion and general disarray that is caused administratively, students are also being removed from their peer groups. If they are not outright expelled, students with prior suspensions are often the first to be prevented from attending social activities like school dances and even graduation.

The California Education Code section 48915 outlines expulsion guidelines in detail for both violent and substance-related offenses. Regarding violent offenses, the Education Code requires explusion for students accused of bringing a firearm, brandishing a knife, possessing explosives, or sexual assault. The Education Code “expects” students accused of lesser violent crimes, including assault and battery, robbery, and possessing a knife, to be expelled. Finally, the Education Code allows discretionary expulsion of students who damage property, inflict mild physical injury, and possess “dangerous objects,” among other offenses. For the most part, these are guidelines that reflect the importance of keeping our youth safe while they are at school.

The Education Code’s take on drug offenses, however, is a little more difficult to swallow. The Education Code requires expulsion of any student who unlawfully sells a controlled substance. It expects expulsion for possession of any controlled substance, with an exception carved out for students who are caught for the first time possessing less than an ounce of marijuana. Finally, the Education Code allows discretionary expulsion for possessing any “drugs or alcohol,” selling substances that look like drugs or alcohol, and selling drug paraphernalia.

There are a number of things I find bizarre and concerning about these outlines. First, selling drugs at school is statutorily punishable in the same way as bringing firearms and explosives to school. This may be appropriate, though I am still concerned about foolish children getting caught up in a code section intended for hardened drug dealers and violent offenders. Recall from my last article how easy it was for Luis to be convicted of “giving a gift of less than ounce” for giving his friend a joint; had his friend handed him a dollar at that exchange, he likely would have been guilty of “sale” as defined by this Education Code section. More alarming is that in the “expulsion expected” category of offenses, possessing any drug is equated to violent robberies and causing serious injuries. Finally, “discretionary expulsions,” just like every kind of discretion, can be abused.

So, what are kids actually getting expelled for? As it turns out, students get expelled and suspended from schools for a veritable menu of offenses. The three largest groups of expulsions for the 2013-2014 school year were “Caused, Attempted, or Threatened Physical Injury,” “Possession, Use, Sale, or Furnishing a Controlled Substance, Alcohol, Intoxicant,” and “Disruption, Defiance.” Notably, all these expulsions were made under section 48900, which outlines the suspension and expulsion procedures for school administrators; a far smaller number of incidences cited section 48915, which outlines expulsions only (as discussed above).

I dug through significantly more data from the California Department of Education DataQuest site to try and figure out if there was a way to determine how often kids are disciplined for marijuana possession. It turns out it’s pretty much impossible to determine. The construction of the Education Code means that marijuana offenses are lumped together with alcohol and other drugs for reporting purposes. When considering how these numbers may change if marijuana is legalized for adult use, it would be useful to look at the alcohol and tobacco school discipline rates. Unfortunately, even alcohol is lumped together with other intoxicants and can’t be pulled apart to examine. Tobacco is not, and it may be a small beacon of hope to highlight that, although over 10,000 students were suspended for tobacco use in the 2013-2014 school year, only 110 were suspended.

While it may not be possible to try and predict the effect legalizing marijuana for adult use will have on school expulsion and suspension policies, I believe we nonetheless need legalization to impact school disciplinary policies. Why? To begin, anecdotal stories from across the country demonstrating strict policies on marijuana possession are becoming all the more frequent. Secondly, there is mounting evidence suggesting the zero-tolerance attitude towards marijuana is having the exact opposite effect desired, and actually makes students more likely to use marijuana. Finally, we know suspensions and expulsions disproportionally adversely affect students of color.

It is perhaps unsurprising at this point that foster youth in California are also disproportionately children of color. Next time in What About the Children, I plan on discussing the issue of race, as well as why talking about children of color is so important.

Clare McKendry for Drug Law and Policy – Follow us on Twitter @DrugLawPolicy

[1] Due to so many of these programs having differing policies from county to county, I had trouble finding a valid citation for this fact. The best, anecdotal citation, I can provide is that I have several friends who are CASAs who have described their chapter’s policy, or de facto policy, as excluding youth with criminal records.

What About the Children Who Want to go to College?

As a graduating law student, I spend a lot of time thinking about my student loan debt. While the thought of how much money I owe the government occasionally paralyzes me with fear, I’ve grown to appreciate the fact that I qualify for many forms of financial aid and have to overcome virtually no obstacles when it comes to asking for educational loans.

Students with drug convictions, both adults and juveniles, have significant trouble obtaining financial aid. Had I been misfortunate enough to have picked up a marijuana or drug conviction during my time in school, it would have been significantly more difficult for me to secure student loans. Few students are aware that if convicted of a drug offense, they become ineligible for federal financial aid (grants, loans, and work-study) for certain periods of time, depending on the nature of the offense and when it happened. The following chart summarizes financial aid eligibility for drug convictions:

Offense Possession of Illegal Drugs Sale of Illegal Drugs
First 1 year of ineligibility from date of conviction 2 years ineligibility from date of conviction
Second 2 years ineligibility from date of conviction Indefinite period of ineligibility
Third Indefinite period of ineligibility Indefinite period of ineligibility

Students with drug convictions may be able to regain eligibility if they successfully complete an approved drug rehabilitation program or pass two unannounced drug tests, in which case they will not have to wait the full term of years to receive aid again. Regardless, if they are convicted of a drug offense while receiving federal aid, they may be held liable for returning the aid they received. The nature of financial aid distribution means that if someone were convicted on October 1, 2014 of a drug offense, then they would have to return proportional tuition and living expenses for the rest of October, November, and December, and any yearly aid that was distributed at the beginning of the school year. All these complications affect anyone receiving aid, regardless of his or her age.

But this is a column about the children. So I want to focus on those we’ve already become well acquainted with: justice-involved kids. I already discussed how justice-involved youth interact with marijuana prohibition through the juvenile courts, and now I want to consider how a marijuana conviction can continue to affect a child, even after they become an adult. Today we will consider the story of Luis, another fictional youth whose story is not unlike many I have encountered working in juvenile court.

Luis was a kid trying to do his best in some rough circumstances. He attended high school and graduated with his diploma just before his 18th birthday. He had been accepted to and planned to attend a great four-year state college, and he was very much looking forward creating a career for himself. Luis’s family was emotionally supportive of him and his college plans, but they weren’t going to be able to contribute financially. While Luis knew he was eligible for financial aid, he also knew making some extra money whenever he could was a good idea. So he started selling pot to some local college kids. One day, Luis was caught giving a friend half an ounce. Luis was arrested and brought into juvenile court.

Luis was lucky in that he was charged only with “giving a gift less than an ounce,” a misdemeanor under California law. He receives only probation. However, his college plans are now in jeopardy, since he is no longer eligible for financial aid. He is now faced with two options: he can either wait a full year to be eligible for financial aid again or pursue early reinstatement by way of a treatment program or random drug testing. Both options may, in the long run, still allow Luis to pursue his degree, but they both come at the high cost of time. Even if he pursues early reinstatement, random drug testing may not necessarily be expedient, and rehabilitation programs are often 45 days or longer. Any period of time preventing a prospective new college student from beginning their studies can be discouraging, especially if it’s a delay caused by an interaction with the justice system.

I gave the example of a misdemeanor marijuana crime for Luis’s story, but anyone convicted of a “drug offense” is subject to federal financial aid suspension. But what counts as a drug offense? It’s very unclear. When filling out the FAFSA (Free Application for Federal Student Aid), applicants are asked if they have ever “been convicted for the possession or sale of illegal drugs for an offense that occurred while you were receiving federal student aid?” A U.S. Department of Education regulation states that a “conviction means only a conviction that is on a student’s record,” however “record” is never defined. Under California law, simple possession of marijuana is only an infraction which does not appear on criminal records. A marijuana infraction may therefore technically affect student aid, but since it does not appear on a student’s criminal record, students arguably aren’t obligated to report it on their FAFSA applications since it does not meet the Department of Education’s definition of “conviction.” Juvenile convictions pose similar confusions, since juvenile courts do not technically “convict,” rather they “find petitions to be true” or juveniles “admit petitions.” Further, the same Department of Education regulation which authorizes the suspension of financial aid for any student convicted of offenses under federal or state law involving the possession or sale of illegal drugs further defines “illegal drugs” as those defined by section 802(6) of the Controlled Substances Act. Section 802(6), unsurprisingly, includes marijuana. More precisely, it includes all drugs labeled schedule I, II, III, IV, or V; marijuana is a schedule I drug. So it’s a reasonable assumption that the Department of Education intended to include marijuana offenses in suspension eligible offenses.

The question for California, and Californian students, therefore becomes: will legalizing recreational marijuana for adult use change anything? In the case of simple possession, it’s possible that it will. If adult use becomes legal, then no adult will be charged with simple possession again, since it will no longer be a state crime. But which “adults” will be included in any “recreational adult use” laws? Most likely, Californians will follow suit with Colorado and Washington (and soon Oregon and Alaska) and legalize for adults over 21. This means that adults under 21 and juveniles will still not be able to legally possess marijuana, and that if caught, may face possession charges. These possession charges, likely infractions, would be subject to the same level of confusion as simple possession infractions today. Convictions other than simple possession will likely remain suspension eligible, since as misdemeanors and felonies they are convictions under the Department of Education’s definition, and marijuana will continue to be an illegal drug as determined by the Controlled Substances Act. It appears as though the only solutions, when it comes to federal financial aid, may be national legalization or rescheduling marijuana out of the Controlled Substances Act.

It is worth mentioning that students who do not qualify for federal financial aid may still be able to qualify for state financial aid. I won’t go down the rabbit hole of what federalist issues are implicated if California were to pick up the tab for students disqualified from federal aid, but suffice to say that it is a possibility, albeit a complicated one. It is further worth mentioning that state financial aid is traditionally significantly smaller than federal aid. Therefore, were California to provide aid to students ineligible for federal aid due to marijuana convictions, a much larger amount of state aid may be necessary.

Next time I will be returning focus to our juvenile children, and examining the consequences marijuana possession can have for kids in the context of schools.

Clare McKendry for Drug Law and Policy – Follow us on Twitter @DrugLawPolicy


What About the Children: Why Our Justice System is Failing Marijuana Involved Youth

Last time in What About the Children, I discussed some of the different ways marijuana prohibition affects children. Today, I want to look deeper into the ways a criminal conviction can affect a child’s life.

Before we can fully understand how marijuana use affects a child within the criminal justice system, I think it is useful to examine, generally, how the juvenile justice system works and how it is different than adult criminal court. One of the chief differences between juvenile court and adult court is the court’s ostensible purpose. In adult court, retribution, colloquially “punishment,” is allowed to play a large role, while rehabilitation takes a back seat. In juvenile court, rehabilitation is the primary purpose. The juvenile court recognizes that the brain of a child is not fully developed, that juveniles are not as culpable as adults who commit the same crimes, and that therefore when juveniles commit crimes and find themselves in the care of the court, it is the court’s duty to do everything they can to rehabilitate them and ensure they eventually become contributing members of society. One of the ways this sentiment is reflected is in the naming of court proceedings in juvenile court. Juveniles are minors or juveniles, never defendants; they are not tried for cases, but appear for petitions; they are never found guilty, but rather their petitions are found true (if by trial) or the allegations admitted (if by plea); finally, they are never convicted as criminals, but rather their behavior is found delinquent. Functionally, the change in terms is fairly surface level. Juveniles are often still referred to as being “convicted” or “having a record; and critically, even though they “admit petitions” rather than “plea guilty to a charge,” the offense they admit to is still referred to as a felony or misdemeanor. Finally, a difference between the juvenile justice system and the adult criminal system that is more than just for show, is that juveniles never appear before juries. It would be mostly impossible and definitely impractical for a jury of juvenile peers—aka other juveniles—to be assembled to hear a petition, and there are additional privacy and fairness concerns with allowing an adult jury to hear a juvenile case.

To be subject to the jurisdiction of the juvenile court, juveniles must be found “fit” for the juvenile system. This occurs by way of a fitness hearing, wherein the judge considers factors including the sophistication of the crime, the minor’s potential to be rehabilitated, and the minor’s criminal history, to determine if the child is “fit” for the juvenile court system. If a child is found unfit for juvenile court, his/her case can be filed in adult court. There are also a number of crimes for which a district attorney can bypass a fitness hearing and file the minor’s case directly in adult court. This practice, called “direct filing,” is generally reserved for violent crimes, and in California was established by Proposition 21, a ballot initiative passed by voters in 2000 in an effort to combat the steep rise in gang crimes. Direct filing, while a contentious issue and worthy of discussion, doesn’t substantially affect marijuana crimes since only violent and sexual cases may be directly filed in adult court, so we needn’t consider it when discussing how juveniles are affected by marijuana convictions.

So, what happens when a minor is found delinquent in juvenile court or admits to drug charges? It’s complicated.

judicial flow chart

This chart is available on the Santa Clara County Court website. It is intended to inform parents about the judicial process their child may be subject to. Frankly, it’s overwhelming. I work in juvenile court several days a week and even I find it confusing. For the purposes of this article, the important points can be summarized as follows: If the crime is an infraction, the youth (or more practically, the youth’s parents) will have to pay a money fine. If the crime is a misdemeanor, the youth will likely be subject to some fines and a period of probation. If the crime is a felony, the youth may be put on probation, placed on a DEJ program, or sent to a 6 to 8 month ranch program. Each of these programs has different requirements and interacts with marijuana law in their own way.

The ranch programs are residential facilities where youth go to receive behavioral and medical therapy, attend school and other programming, and generally be rehabilitated. Depending on how the youth performs at the program, the youth can be released from the program as early as 6 months after s/he began or as late as 8. Ranch programs are California’s highest security program and the last stop before being sent to the Division of Juvenile Justice, formerly the California Youth Authority, which is essentially a prison for those convicted of crimes before their 18th birthdays. DJJ may retain a youth in her facility until she is as old as 25. A youth may be expelled, suspended, or forced to restart a ranch program if he is caught behaving feloniously, aka committing crimes, or if he breaks any number of program rules. A popular way to get kicked out of the ranch or forced to restart is by sneaking in and using drugs.

If the felony the youth admits to is the youth’s first felony, DEJ, or Deferred Entry of Judgment, allows the youth the opportunity to avoid a criminal record if she satisfactorily completes a period of intensive probation. A youth is eligible for DEJ, generally, if he doesn’t have a prior criminal history and if his offense isn’t a “707(b)” offense. 707(b) is a statutory list of mostly violent crimes, including rape, murder and torture. Once the court agrees the youth is eligible, the probation department makes a recommendation on whether they think the youth is suitable for DEJ; the department considers things like the youth’s maturity and family situation – essentially all the factors that would indicate the youth is likely to succeed in the DEJ program. DEJ generally requires weekly or biweekly drug testing, enrollment in therapeutic or education programming, and quarterly check-ins with the court to ensure the youth hasn’t picked up any new cases. If, after a year, the court finds the youth to have satisfied the requirements of the DEJ contract, her record is expunged and she is deemed never to have been found delinquent. If the court finds the youth did not satisfy the terms of the DEJ contract, the youth may be placed on formal probation. Again, a popular way to fail DEJ is with dirty drug tests.

The story goes like this: Diego admits to a charge of burglary when he was caught breaking into cars and stealing iPhones and GPS systems. It’s his first felony, and he is found eligible for DEJ. The entire ordeal is a wakeup call for Diego, and he puts in a lot of effort during the year he is on DEJ. His grades improve, he’s on the basketball team, his relationship with his family is fantastic, he attends programming and victim awareness courses, and he doesn’t commit any new crimes. However, he still smokes pot a couple of times a week. At his last check-in, the judge declares that because he hasn’t stopped smoking marijuana despite an order from the court, he has broken his DEJ contract. The felony is entered onto his record, and Diego is placed on formal probation. Despite vastly improving himself since admitting to his crimes, and even though drugs played no role in his offense, he will now have a felony on his criminal record.

But Diego’s story is not over, since he is now under the supervision of formal juvenile probation. Formal juvenile probation has requirements similar to DEJ, requiring the youth to be clean and sober and not commit any new crimes at the risk of being sent back to juvenile hall or a ranch program. However, unlike DEJ, which operates under the theory that only youth who remain entirely law abiding for a year should receive the gift of an expunged criminal record, formal probation’s purpose is to assist in rehabilitation. This means that a youth who is on formal probation may also be required by the court to attend therapeutic programming, ranging from family counseling to residential drug treatment. Unlike DEJ, however, the youth may be required to remain in a program, like drug treatment programs, until they successfully completes the program. This can take quite a long time if the youth insists on continuing to use drugs. Formal probation is generally discretionary, meaning the court can extend probation supervision at will depending on how the youth is performing. The juvenile court can keep a youth on formal probation until he is 21. Any youth who admits to a misdemeanor, and many youth who admit to felonies, can be subject to formal probation. So, while simple possession of marijuana will not land a youth under the supervision of the court, since it is only an infraction, a myriad of other marijuana related crimes could. And as you may begin to suspect, the court is not very sympathetic to youth who use marijuana while on probation. In Diego’s case, a number of scenarios may unfold while he is on formal probation if he continues using marijuana. He may be subject to the jurisdiction of a judge and probation officer who are less concerned with his marijuana use (remember, he’s become a high achieving student and star athlete; on many fronts he is having some very successful years) and after two years probation may end. However, if a stricter judge hears Diego’s case and/or he has a stricter probation officer, his drug use may force him into additional treatment programs. He may even be subject to a residential program, which could remove him from his family and school for more than four months at a time.

Diego’s story, while invented for this article, is not uncommon, and I have witnessed every aspect of it play out in various juvenile cases. It also highlights some of the collateral issues of marijuana convictions. One issue that is particularly salient for youth under 18 is that even minor misdemeanor convictions can cause the youth to be removed from their family and community for quite significant periods of time. (Do you recall being 16? EVERY period of time is significant!) Removal from one’s family can cause stress on even the strongest, most supportive family. Removal from school means a youth’s education is disrupted, even if alternative school programming is offered wherever the youth is housed. Spending time in juvenile hall or other facilities also means youth are associating with other criminally active minors. Finally, spending time in juvenile hall, a ranch program, or rehab, despite the juvenile court’s best rebranding efforts, has a profound effect on a youth’s self-awareness. They are no longer considered a science nerd, football jock, or budding rock star, but rather, they see themselves as the system they are subject to: as a delinquent, criminal, and screw-up.

This problem of personally identifying with the label they are given, often referred to as “labeling theory,” is the subject of numerous books, college courses, and Ph.D. theses. The basic explanation of labeling theory is that we are or become what we are labeled, especially if those labels involve deviant or abnormal behavior. For teenagers in particular, labels and names can be particularly influential. The theory as applied says that youth who are labeled criminal or delinquent because of a marijuana conviction are more likely to engage in other, non-marijuana related, criminal activity. Labeling theory provides, to me, one of the most convincing arguments for legalizing marijuana for adult use. If marijuana is no longer so taboo that it makes anyone who engages with it considered a criminal in the eyes of the law, it will serve as less of a gateway for our youth. I recognize that this argument relies on a lot of unfounded extrapolation, but I firmly believe it holds water. Consider that teenagers who smoke cigarettes or drink alcohol, while still breaking the law and engaging in unhealthy behavior, are considered more as “rebels” by their peers rather than criminals. Marijuana is often referred to as a “gateway drug,” but there is insufficient evidence of a causal relationship to prove that it is marijuana use that compels individuals to use harder, more damaging, and more illegal drugs. What we do know, and what countless highly esteemed scholars have accounted for, is that labeling someone a criminal makes them more likely to commit crime. By regulating marijuana for legal adult use, we have the potential to protect our children from the harmful labels initiating them into our criminal system.

What About the Children? Three Ways Kids Feel the Effects of Marijuana Prohibition

Spend thirty seconds speaking to anyone about the issue of recreational marijuana and the topic of kids will almost inevitably come up. Youth use and accessibility are significant issues to consider in the recreational marijuana discussion; much like alcohol and tobacco, marijuana has a negative impact on juvenile and teenage development, the extent of which has yet to be completely determined. However, the popular argument against legalizing recreational marijuana that is based on the concern of youth use and accessibility is shortsighted, for a number of reasons. One reason mentioned above, and one that I won’t be spending much time discussing in my coming blog additions, is that the medical effects of marijuana on children is still very unknown. The American Academy of Pediatrics just this year released new policy statements that simultaneously called for the decriminalization of pot but opposed outright legalization of recreational marijuana. This may be indicative of a greater terminology problem (one which Drug Law and Policy is covering as well), but I think it is also valuably indicative of the sheer lack of conclusive knowledge and data on the topic. The various harms caused by marijuana to the population at large is a daunting and not well understood problem, let alone the specific harms affected on youth.

While the medical and developmental effects of marijuana on children may be difficult to measure, what are much easier to measure are the effects of current marijuana laws on youth. These effects, and the ways in which they might change if recreational marijuana is legalized, are what will be discussed and analyzed in my series.

To begin, it’s worth considering when it is that marijuana regulations and laws affect youth. For the purposes of this series, I am concerned about when youth are “caught.” Youth are undeniably affected in other ways by marijuana regulation (for example, their access to marijuana is tied pretty closely to whatever regulations are in place), but this series aims to focus on the ways youth are directly affected. So, the next logical question becomes, what do you mean by “caught?” The most obvious and extreme scenario is when a youth is caught with marijuana by the police or law enforcement. In this case, the youth faces a number of criminal charges depending on what kind of marijuana, the amount of marijuana, and where they were caught. The second half of this blog post will discuss the current make up of California’s criminal marijuana laws. Before that, I will quickly review two broad areas of impact to consider when discussing youth getting caught.

One common way a youth is caught is at school by administrators or teachers. The consequences for youth getting caught with marijuana at school can vary, though two of the most serious consequences are obviously suspension and expulsion. The data on incidences of youth being caught at school is difficult to compile, for a few reasons. First, collecting data for any issue involving children is challenging thanks to many comprehensive privacy protocols protecting the identity of children. Second, schools are reluctant to formally report illegal activity on their campuses often out of concern for the consequences such reports will have on the children involved. No teacher wants to call the police only to have one of their students arrested in the classroom and face criminal prosecution. That reluctance could lead to school administrators suspending youth for simple possession and reporting the incident under a broader education code section.[1] Third, schools have been known to strong-arm youth into “voluntary withdrawal” from home school districts when they are found with marijuana or other contraband. The story plays out like this: Jose is caught with marijuana and called into the principal’s office. Pamela the Principal calls the campus police officer or local station. An officer comes to Pam’s office, explains to Jose that having marijuana on school grounds is a misdemeanor, selling to other youth is a felony, and that Jose can avoid criminal charges if he withdraws from the school. The outcome of Jose’s ordeal is that he was forced to leave his school because of a marijuana incident, but no trace of marijuana is mentioned in any kind of report. Finally, data on suspensions and expulsions due to marijuana possession is impossible to determine from the California Department of Education due to the language of the Education Code. The Education Code lumps all suspensions and expulsions related to alcohol, intoxicants, and any controlled substance, including marijuana, into one code section, 48900(c). Teasing out which offenses are for marijuana is impossible.

Another area of concern I plan to explore more deeply in a future post is the differing consequences for dependent youth. A dependent youth is any youth who is a dependent of the state, mostly foster children or children who have been otherwise removed from the care of their natural parents. These youth face a set of consequences different than those of their independent counterparts. While a child living with his or her natural parents who is caught with marijuana is likely to be grounded, perhaps have their allowance or car use privileges revoked, a foster child or child in a group home caught by their guardian is likely to end up in juvenile hall. Further, being convicted of a crime may require a change in a youth’s living situation and make them ineligible for certain programs and benefits. Policy and regulation of foster care varies by county or region in California, as do the policies of programs serving foster youth, like Court Appointed Special Advocates (CASA) and Foster Youth Success Initiatives (FYSI). Therefore, it may be difficult to conclude exactly how often and to what extent a marijuana offense disrupts a youth’s dependent status. Regardless, I will be attempting in the next couple weeks to compile some kind of sampling of the various policies and practices.

The third and final area of concern I will discuss today are the effects of a youth being caught with marijuana by police or law enforcement. When the police catch a youth with marijuana, the youth faces a number of different charges depending on where and when the youth is found. In California, marijuana possession was “decriminalized” by SB 1449, which Governor Schwarzenegger signed into law in 2010. The bill made possession of up to an ounce, or 28.5 grams, of marijuana an infraction, punishable by a $100 fine, and requiring no court appearances.[2] The infraction would appear on someone’s criminal record, but could be completely expunged after two years. This is great for adults and youth alike who are charged with “simple” possession. The problem, of course, is that possession is not always simple.

SB 1449 made possession of marijuana for personal use an infraction, however, it left open several exceptions that allow prosecutors to bring more serious charges in very similar circumstances. has a great chart as a summary. One of the most glaringly problematic exceptions (at least to this reader when she first saw the bill) is that for both juveniles and adults, getting caught with under an ounce of marijuana on school grounds is a misdemeanor. I understand the reasoning behind leaving possession at school a misdemeanor—to discourage users and dealers from bringing marijuana to schools—however, the decision to make it a misdemeanor rather than an infraction for a youth to possess at school lacks some practical forethought. Namely, that kids spend a lot of time at school.[3] Further, kids generally feel safe at school in the sense that they consider it a familiar place where they experience some kind of ownership and belonging. When this sense of comfort is confronted with increased police presences on school campuses and teachers who may be mandated to report drug incidences to law enforcement, it becomes clear that its not a question of whether kids get caught with marijuana at school, but when. (This issue taps into a much larger discussion about the school-to-prison pipeline, which I can’t possibly dissect to any respectable degree on this blog. Here is an infographic that briefly explains the problem and conveniently punches you in the heart.) Additionally, SB 1449 left possession with intent to distribute or sell, of ANY amount of marijuana, a felony. So if the school security guard catches 16-year-old Carlos selling his friend a joint for a dollar, he could be looking at misdemeanor-possession and felony-sale charges. Even though marijuana was “decriminalized.”

Thanks to Proposition 47, it is no longer a felony to possess concentrated cannabis, however it’s clear there are still a number of ways youth can get wrapped up with some serious criminal charges involving marijuana, despite SB 1449’s efforts. The consequences for youth of a misdemeanor or felony conviction, or even an infraction to some extent, expand beyond the money fines and periods of incarceration. These many effects, as well as the ways in which they might change if California chooses to legalize recreational marijuana, will be discussed in this blog series in the coming weeks.

Clare McKendry for Drug Law and Policy – Follow us on Twitter @DrugLawPolicy

[1] California’s broadest Education Code section, 48900(k), “Disruption, Defiance,” was significantly narrowed in scope by AB 420, enacted in September 2014. Given the very recent nature of this legislature, and that California schools are halfway through their academic year, it won’t be possible for me to determine the impact of AB 420 on suspensions or expulsions for marijuana during my authoring this blog.

[2] Notably, reducing the charge to an infraction also distinguishes the offender’s right to counsel.

[3] The California Department of Education requires schools teaching grades 9-12 to offer 180 days with 63,000 minutes of instruction each year. That equates to 5.83 hours of instruction each day a youth is in school, and that does not take into account passing periods, lunch, and the general loitering that teenagers are so want to do.

What About the Children?

Spend thirty seconds speaking to anyone about the legalization of recreational marijuana and the topic of kids will come up. But while youth accessibility and use are noble issues of concern, there are many other ways youths’ lives are affected by marijuana. Today, youth caught with marijuana can face school expulsion, suspension, criminal sanctions, incarceration, or facility committal, all of which severely disrupt a youth’s education, socialization, and sense of community. Regulating adult use has the potential to nonetheless drastically change some of these consequences for youth.[1]

My name is Clare McKendry, and I am a third year law student at Santa Clara University. Last year I began working at Fresh Lifelines for Youth, or FLY, a nonprofit based in San Jose, California, dedicated to breaking the cycle of violence, crime, and incarceration of teens. I work for their Law Program, which teaches youth ages 14-17 who are on probation, at risk of probation, or incarcerated, practical information about the laws that affect their lives. Working at FLY and at the Santa Clara County Public Defender’s Office exposed me to the life-altering changes a marijuana conviction can create. My hope with this blog series is to gain a better understanding of all the ways marijuana affects youth, beyond just the cognitive consequences of use, and the ways those consequences may change if California chooses to legally regulate recreational marijuana for adults.


[1] In the 2013-2014 school year, 1,737 students were expelled for drug and alcohol related offenses, while only 110 students were expelled for tobacco use or possession. The only offense that garnered more expulsions in the 2013-2014 school year than drug and alcohol offenses was “disruption or defiance.” Disruption and defiance expulsions have been hotly criticized in California as being extremely racially biased and targeted by civil rights groups for their “catchall” application to justify expulsions.