Tuesday, April 9, 2013

Marijuana Penalties Still Set to Be Decreased Under HB 1006

Some of my friends who have argued for decriminalization of marijuana possession if not downright legalization are screaming that Indiana, with the changes to House Bill 1006, is going in the opposite direction of the nationwide trend in support of more liberal marijuana laws.    They believe that Indiana is actually increasing the penalties for marijuana possession this session.  It isn't true.  There is simply some confusion about the current law and the changes to HB 1006.

First it is important to note how our penalty system works. The most serious penalties to the least are as follows (with ranges of punishment are as follows):

Murder (45-65 years)
Class A Felony (20-50years)
Class B Felony (6-20 years)
Class C Felony (2-8 years)
Class D Felony (6 months-3 years)
Class A Misdemeanor
Class B Misdemeanor
Class C Misdemeanor

Under the proposed revision to the criminal code contained in HB 1006, the new penalties are as follows, again from most severe to least:

Level 1 Felony
Level 2 Felony
Level 3 Felony
Level 4 Felony
Level 5 Felony
Level 6 Felony
Class A Misdemeanor
Class B Misdemeanor
Class C Misdemeanor

Under current law, IC 35-48-4-11, possession of marijuana is a Class A misdemeanor but a Class D Felony if a person has more than 30 grams or has a previous possession for possession of marijuana.  If the person has more than 10 pounds of marijuana on them it becomes Dealing in Marijuana, a Class C Felony, under IC 34-48-4-10.  Also, even if the amount of marijuana delivered to someone else (as opposed to simple possession) was small, if it was done on a school bus, or within a 1,000 feet of a school, public park, family housing complex, or youth program center then it becomes a Class C Felony under the Dealing in Marijuana statute.  So if Joe hands his classmate, Bob, a joint while at school, Joe has committed a Class C Felony, 2 years minimum prison sentence.

Under HB 1006 as originally filed, it would have changed the penalties to a Class C misdemeanor for possession with it moving to Class B if the person had a previous conviction for possession and had more than 30 grams.  If the person had more than 30 grams but less than 10 pounds, then it would be a Class B misdemeanor without the prior conviction.  More than 10 pounds and possession was a Class A misdemeanor as the bill was originally constructed.

Governor Pence objected saying the change was too dramatic. So an amendment was introduced changing the bill which passed.  HB 1006 in its amended form provides for a Class B Misdemeanor for possession with it bumped to a Class A misdemeanor if the person has a prior conviction for possession and to a Level 6 Felony if the person has a prior conviction and possesses more than 30 grams.  It also would make it a Level 6 Felony, without the prior conviction, if a person had more than 30 grams but less than 10 pounds.   The penalty becomes a Level 5 felony is the person has more than 10 pounds of marijuana and has a prior conviction.

Bill Levin, Indiana Marijuana Legalization Advocate
The changes that HB 1006 would bring is still a reduction in penalties when compared to current law. The initial conviction for marijuana possession is less of a penalty - a B misdemeanor instead of an A.  But the big change is that a second simple possession under the current HB 1006 would no longer result in a felony.  Finally the Level 6 Felony could only be imposed when there is both a second possession and possession of more than 30 grams.  Currently someone can get a Class D Felony.  The dealing laws overall appear to have been reduced as well.  Most significantly the 1,000 feet dealing provision which enhanced many charges, appears to have been eliminated. 

So the penalties for marijuana possession have been reduced, contrary to claims of many people.  Have they been reduced as much as they should have been?  Probably not..  But advocates of decriminalization and legalization should stop trying to seize defeat from the jaws of victory. This issue continues to move in their direction, even with Republicans dominating both houses of the General Assembly and a Republican in the Governor's Office.

A caveat.  This is my review of some very complex statutes and bill language. It is very confusing and difficult to sort out.  It is possible there are some mistakes in the analysis.  I think there is no question, however, that the new bill even after amendments still reduces the current penalties for marijuana possession when compared to current law.

1 comment:

Nicolas Martin said...

Prettifying the plantation. Freedom it isn't.