Tag Archives: criminal law

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. Norml.org 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.