Youth pot felonies 'slipped in under the radar'

A provision in a Washington law that makes it a felony for anyone younger than 21 to possess marijuana is an "unintended consequence," according to a representative from Gov. Jay Inslee's office, but three Asotin County teens face those charges nonetheless.

Asotin County Prosecutor Ben Nichols said language in Senate bill 5052 stipulates that the level of offense for a minor caught with pot is now a felony, and three teens, ages 14, 15 and 17, have been charged so far.

"I can only tell you that this was not the intention that the governor had when working with legislators on this bill," Inslee spokeswoman Jaime Smith said of the law that was written to clarify the state's medical marijuana laws and went into effect in July. "If prosecutors are finding that this language allows them to do this, that was not the intention."

Asotin County felony public defender Rick Laws, who represents one of the juveniles, said he was taken aback by the new law.

"I don't think any of us saw this coming," Laws said. "I get the sense that even a lot of people who voted for the bill didn't see this coming. It seems to have slipped in under the radar."

Washington Liquor and Cannabis Control Board spokesman Brian Smith agreed with the governor's office that the legislation was not meant to increase the penalty for minors from a misdemeanor to a felony. That's especially true in a state where people older than 21 can possess as much as 28 grams of marijuana, and possession of as much as 40 grams is only a misdemeanor.

"The intent of the legislation was not to increase penalties on minors in possession," Brian Smith said.

But Justin Nordhorn, the board's enforcement chief, said that upping the severity for minors is what the new law technically does.

"It does appear it is a class C felony, based on connecting the dots," Nordhorn said after reviewing the legislation.

Whether prosecutors will charge minors with felonies for the offense is another question, he said.

"They can choose to apply that," he said. "They can choose not to go down that road. It's really up to the prosecutor's office to decide the best course of action for continuing that line of accountability."

Nichols disagreed with that assessment.

"My job is to apply the law, not to make the law," he said. "The problem with the argument that there's prosecutorial discretion is that the law doesn't allow the prosecutorial discretion."

Some laws do allow prosecutorial discretion, he said, but such language is not included in the marijuana law.

"If you are a minor, a person under 21, it's a felony no matter what," Nichols said. "If somebody says that's not what he governor intended I believe them - but he signed the law as written."

In fact, bill sponsor Sen. Ann Rivers, R-La Center, said Wednesday that the tougher penalty was designed to deter minors from trying an adult drug.

"We have to send a message to our kids: This will hurt you in more ways than one if you decide to participate," Rivers said.

As the bill was fashioned, all parties agreed that keeping marijuana out of the hands of minors was a priority, Jaime Smith said, "but there are other ways to do that without charging them with felonies."

The governor has no power to change the legislation on his own, Jaime Smith said. But when there is confusion about a new statute, she said, it is not uncommon for the Legislature to clarify or fix it.

Laws said that's of little comfort for his client.

"That's great," he said. "But how many people are going to fall through this hole before we have a chance to get it patched? The answer should be nobody. That's an awfully high price for a few people to have to pay for faulty legislative work."

Nichols said he expects the Legislature will change the law during its next session, but anyone convicted in the meantime would then have to return to court to ask to have that conviction vacated.

"I think that would be real good grounds," he said. "But it wouldn't be automatic."

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Stone may be contacted at mstone@lmtribune.com or at (208) 848-2244. Follow her on Twitter @MarysSchoolNews.