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Washington Prosecutor: Kids Aren’t Going To Prison For Pot

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Don’t believe everything you read. Incendiary headlines are great for generating clicks, but not so much for disseminating real or useful information. Case in point alternative media last week was set ablaze with a story out of Washington State about a handful of teenagers who were looking at prison time for simple cannabis possession. The story ignited the Twittersphere and the Book of Faces with such outrage that even a few mainstream publications picked it up. Sadly, most of them perpetuated the same narrative of an over-eager prosecutor carrying out the bidding of a State Senator seemingly bent on Reefer Madness-era regression.1 As it turns out, that narrative was utterly skewed to the point of borderline falsehood. Not one of the juveniles charged was ever looking at prison time, none of them were picked up for the mere crime of toking up, and Asotin Prosecutor, Ben Nichols, isn’t the “sadistic” comic book villain the media has made him out to be.

Quite the opposite, in fact. One phone conversation revealed the man at the center of this whirlwind of hearsay is actually a reasonable individual who went out of his way to mitigate the damages of a law he never supported in the first place.

The bulk of the new law, sponsored by Senator Ann Rivers (R, La Center), was intended, as Nichols explains, “to mesh the recreational marijuana with the medicinal marijuana,” in order to try to get a handle on an already convoluted system. “It does a really bad job of it, by the way,” he adds, candidly. Sandwiched within this attempt at restructuring, though, was a provision that made it a Class C felony for a juvenile to be in possession of any amount of marijuana. At least, that’s what the framers and those charged with implementation originally stated.

“I’m in a presentation and they say, ‘As of July 1, all possession by juveniles will be a felony,’” Nichols explains. “I come back and I brief my judge and I brief my juvenile department, so we stop charging marijuana because we don’t want to charge kids with felonies for marijuana.”

But, but, but . . . this is the guy who dug in his heels and insisted he had to put kids in prison for pot, right? Not so much. As Nichols explains, all six (not three, as originally reported) individuals who were facing felony charges for possession were only being charged because of extenuating circumstances that required action. Two of those individuals had stolen vehicles and taken them on joyrides. One of the joyrides ended in the car being totaled after an extended police chase. Two more individuals had also stolen alcohol and a can of Dust Off, which they proceeded to huff with friends at a rogue high school party where someone ended up horribly sick as a result. The last two were involved in a situation where the marijuana was brought to school with the intention of it being sold. Long story short, these weren’t just a few hippie kids being cranked through a mercilessly rigid system for smoking a joint.

“No!” Nichols responds without hesitation. “No, no, no! In cases like that, we simply didn’t file the charge because it is such a serious charge. In those six cases, we had to do something and I believed based on all the information provided to me that the only charge available was a felony charge. I have since been told that no, there is a way to work around it. I have been shown the way to get to a misdemeanor marijuana charge, so we reduced all six to misdemeanor marijuana.”

However, even if the original felony charges had stuck, there was never a possibility of any of these kids doing prison time. “It makes me grit my teeth,” Nichols says of the whole notion. “In the state of Washington, juveniles cannot go to prison. At all. Period . . . There are no juveniles in our prison system in the state of Washington. It doesn’t work that way. The second thing that everyone sort of misses the boat on: the individuals that were charged with felony possession of marijuana were facing, not five years in prison, but a maximum of 30 days in the local detention facility.”

He goes on to explain how the media slid so far past the truth, “So, someone reads it’s a class C felony. Someone looks up Class C felony, and it says that in the State of Washington, a Class C felony is punishable by up to five years in the state prison. All of those things are correct, however, if you read a little bit further, you’ll find within that zero to five years, there’s another framework and [those kids] are nowhere near a five year hitch. And they can’t serve it in prison anyway.” That framework he mentions is one that first looks at the seriousness of the crime and the prior record of the individual before the judge issues a sentence. For an adult, while a Class C felony could call for up to five years in the most extreme cases, that is rarely the sentence given on a first offense. For a juvenile, the actual window is, as stated before, up to 30 days, a far cry from what previous stories on the debacle originally stated. The maximum for a misdemeanor charge? Also 30 days. The only difference is the labeling. Yes, that labeling places a heavy societal burden on the individual convicted, but Nichols readily concedes this point.

“There is a stigma and there is a burden to someone who is convicted of a felony,” he volunteers without being coaxed. “I know that. But the reality is, if you look at the six cases involved, two individuals were actually convicted. And again I have moved to set aside their convictions, I have reduced the charge to a misdemeanor and we’ll go back to misdemeanor land where we should have been in the first place. But had both of those individuals not had prior felony charges, they would not have been made a felon for possession of marijuana.”

Far from how he was painted, Asotin’s Prosecuting Attorney is a no-nonsense public servant who is very open about his belief that cannabis prohibition is a failed policy and actively argues that, though he was against Initiative 502, the plant should be regulated and taxed like any other state-sanctioned vice.

“I was against it because it was a nightmare,” he qualifies, “because it didn’t make any sense, because it was so vague . . . if you look back and you say, ‘How did this disaster that we’re dealing with now, how did it come about?’ the origins go back to the way the things were written. It was a terrible piece of legislation.” He’s not the only one to feel this way. The grounds of Hempfest 2012 were covered in anti-502 signage, with most of the speakers of the event railing against it with the conviction of a Pentecostal preacher. With such a large wave of opposition from within the cannabis movement, the fact that the law passed at all is truly a testament to just how ready Washington was to take the step to full legalization.

Nichols describes the legalization bill he would have supported as “A legalization of marijuana that recognizes that it is a substance that needs regulation, a system that uses the structure in . . . the alcohol world.” He goes on to explain his reasoning behind that.

“Here’s something just to wrap your mind around,” he begins, “and again, this is one of the stupid things about our marijuana law. You are 20 years old, you got a brother who’s 22.  You borrow his ID and go to the Circle K to buy a six pack of beer. The guy behind the counter sells you the six pack of beer. The guy behind you in line is a cop and says, ‘I know he’s under 21. You just sold him beer. You’re going down for selling alcohol to minors.’ You don’t go to jail. You get a ticket. You pay a fine. You might lose your job at the Circle K because you sold to an underage kid.

“So after you get done with that fiasco at the Circle K, you walk down to the Cannabis store. You walk in, you buy some marijuana. The guy behind you in line is a cop and he says, ‘I know this kid’s under 21. You just sold marijuana to a kid under 21!’ What’s the clerk face? Felony charges, because he’s just delivered controlled substances. Now, that’s the law. How ridiculous is that?”

The Prosecutor isn’t naïve about the situation in which he’s found himself. Though he is willing to address the questions that have arisen from the recent media frenzy, he is well aware of the reality of our social media-driven system of (mis)information. When it’s fact versus provocation, the latter always wins, even in the realm of alternative media where those involved are supposedly seeking the unadulterated truth.

“Let’s be honest, OK? Let’s be absolutely honest. No matter how much passion, no matter how much heart you put into the article you’re writing based on our discussion today, you aren’t going to get one tenth of the play, not one percent of the play that the outrageous headline, ‘Prosecutor in Eastern Washington Sends Babies to Prison for Five Years,’ managed to get. You’re never going to sell that many papers or get that many likes or anything like that with an article that carefully and dispassionately discusses what really happened.”

For his own sake, let’s hope he’s wrong.

1This statement is made excepting the outstanding journalism carried out by U.S. News and World Report, which initially inspired me to dig deeper and question the genre of media I typically trust implicitly.