Let's read OK statutes to find out how SB 445 really does re-criminalize cannabis
Let's read OK statutes to find out how SB 445 really does re-criminalize cannabis
*Updated: At an April 8 hearing, Rep. David Hardin (R-Stilwell) said the bill was requested by prosecutors to punish black-market dealing of cannabis and not people sharing it within their homes. Some lawmakers countered that other states were simply moving away from the criminalization of cannabis. A new summary online now states that the bill specifically targets medical marijuana businesses “that make unauthorized sales” and for “intentional and impermissible diversion of medical marijuana by a patient or caregiver.”
When Oklahoma voters authorized medical marijuana in 2018, they did more than simply allow its use with a license. They sent a clear message that the state’s historically severe drug laws prohibiting cannabis were being reformed and that cannabis was being more-or-less decriminalized.
Even without a license, possession of up to one and one-and-a-half ounces is a mere misdemeanor that cannot exceed a $400 fine. The Oklahoma Medical Marijuana and Patient Protection Act prescribes an even lower fine for “impermissible diversion” by a patient to a person without a license of $200 on the first offense and $500 on the second.
Just eight words contained in the Patient Protection Act are shielding Oklahoma’s roughly 381,000 medical-marijuana patients from harsher punishments that exist elsewhere in state statutes and very much remain active law today. The Patient Protection Act explicitly states that diversion “shall not be punished under a criminal statute.”
Yet a proposed bill pending in the Oklahoma legislature by Rep. Lonnie Paxton (R-Tuttle) and Rep. David Hardin (R-Stilwell) would remove this protection and make violators susceptible to serious prison time and fines for cannabis possession or diversion to an unlicensed person. Senate Bill 445 has now passed the Oklahoma Senate and cleared second reading in the House.
According to a summary of the bill from the state, this new law would apply to those simply possessing or using cannabis without an Oklahoma license and doesn’t specify “diversion.”
I wrote previously about the new cannabis tax revenues being generated in state House and Senate districts where elected officials were seeking new laws to constrain the cannabis industry or enhance criminal penalties for violations.
SB 445 not only removes the shield contained in the Patient Protection Act. It asserts that violators would become subject to much more serious penalties prescribed in the Oklahoma Uniform Controlled Dangerous Substances Act.
In its own section of Oklahoma statutes, the Controlled Dangerous Substances Act at times spells cannabis “marihuna” owing to its Drug War origins in the 1970s and 1980s. When reading SB 445 on its face, it does not immediately become clear that the proposal would effectively re-criminalize cannabis in Oklahoma. Understanding how it does this requires looking at the Controlled Dangerous Substances Act.
What does it say? There, simple possession of cannabis can lead to a year behind bars and $1,000 in fines. It gets steadily worse from there.
Were you on probation for an unrelated crime at the time of the arrest? Were you on probation at any time over the previous 10 years? That can turn your possession conviction into a much more grievous felony punishable by one to five years in prison and $5,000 in fines.
Did you commit the offense within one thousand feet of a school, park, or child? That’s two years in prison on the first offense and $2,000 in fines. Also, at least 50 percent of your sentence must be served before you become eligible for good-behavior credits. Get convicted again and it’s three years in prison, $10,000 in fines, and 90 percent of the sentence must be served.
These are the penalties for simple cannabis possession. If the authorities find evidence that you intended to distribute the cannabis, you risk even bigger trouble. It’s a felony on the first offense with up to five years in prison and $20,000.00 in fines. A second offense where there’s intent to distribute boosts the penalty to 10 years in prison and a third to 15. Your fines then can surge to as much as $100,000 under the Trafficking in Illegal Drugs Act if you’re caught with 25 pounds or more “of a mixture or substance containing a detectable amount of marihuana.”
So as you can see, SB 445 raises the specter of serious time behind bars and major fines if you are convicted of possessing or diverting cannabis. This occurs as Oklahoma voters are signaling a desire in recent years to move away from punitive measures in nonviolent drug cases. After passing the Senate in early March with a vote of 37-8, SB 445 is now waiting to be taken up by key House committees, receive a full House vote, and then be considered by the governor.
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