By Jacob Sullum
A bill that supposedly has a good chance of being approved by the California legislature would give local prosecutors the discretion to charge marijuana cultivation as a misdemeanor rather than a felony.
The bill, introduced by California Assemblyman Tom Ammiano (D-San Francisco) and endorsed by the district attorneys of pot-growing Humboldt and Mendocino counties, promises to save taxpayers money by giving growers probation, fines, or short jail terms rather than prison sentences. Mendocino County District Attorney David Eyster explains the rationale:
When it comes to marijuana cultivation, one size does not fit all. The proposed change affords local District Attorneys the charging discretion to determine, for example, that a home gardener with a few non-medical marijuana plants will not be prosecuted at the same level as a profiteer operating a major marijuana plantation. It makes no sense that unlawful possession of less than one ounce of marijuana is an infraction, that possession of more than an ounce of marijuana is a misdemeanor, that possession of methamphetamines may be charged as a misdemeanor, but that growing any amount of marijuana must be charged as a straight felony punishable by prison.
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Leaving aside the question of whether any penalty for growing pot can be considered appropriate, Eyster has a point. But I am uncomfortable with legislation that enhances prosecutors' power to dictate defendants' fates by deciding what charges to bring. Although penalties based on quantity have their own problems, it seems to me it would be better to require that cultivation below a certain amount must be treated as a misdemeanor. Still, the net result of the change proposed by Ammiano is apt to be shorter sentences for many small-scale growers, perhaps at the cost of greater inequality (since similarly situated defendants may face dramatically different punishments when they are prosecuted by district attorneys with different attitudes toward pot). Since it's hard to see how the bill will make defendants worse off, it looks like an improvement to me.
The text of Ammiano's bill is here (PDF).