You have to feel some sympathy for Josh Marquis. By all accounts, he's a decent man and a good district attorney for Clatsop County. But, unfortunately for him, he's emerged as the leading voice for law enforcement's opposition to Measure 91, Oregon's initiative to legalize marijuana. That's a tough position to be in when the state is generally expected to pass legalization, if not in 2014, definitely in 2016, and when one in nine adult Oregonians smoke marijuana monthly.
Since legalization is such a popular idea, it is up to Marquis to sow the seeds of doubt, confusion, and fear so voters will stick with the status quo of prohibition. Sadly, he's so blinded by his mission that he's abandoned a principle that a law enforcement official should always abide by - the truth.
His latest rant against Measure 91 is that it contains an "Easter Egg" nobody is talking about. ("Easter Egg" is a term used by computer programmers and it refers to a undocumented feature a user can unlock with a secret code.) On his personal Facebook page, Marquis writes "One 'Easter egg' not mentioned is that M-91 takes away ANY criminal penalties for smuggling any amount of weed into a jail or youth prison."
Wow! Legalizing marijuana under Measure 91 means that you can smuggle a pound of weed into prison with impunity? Why would legalizers put such a devastatingly awful provision in an initiative? What good would anyone ascribe to allowing prisoners mass quantities of weed? (Fewer fights? Better appreciation of the chow? Totally awesome rounds of Hacky Sack in the yard?)
What Marquis refers to is Section 55 in Measure 91, which reads:
Possession of marijuana in correctional facility prohibited.
(1) It is unlawful for any person to possess or engage in the use of marijuana items in a correctional facility as defined in ORS 162.135 or in a youth correction facility as defined in ORS 162.135.
(2) A violation of subsection (1) of this section is a Class B violation.
Well, if you read that, it sure looks like he's right. A mere ticket for possessing or using marijuana in a prison is what Measure 91 proposes. Except for one little detail. Measure 91 doesn't repeal any existing laws regarding contraband in prisons. Specifically, ORS 162.185, which reads:
(1) A person commits the crime of supplying contraband if:
(a) The person knowingly introduces any contraband into a correctional facility, youth correction facility or state hospital; or
(b) Being confined in a correctional facility, youth correction facility or state hospital, the person knowingly makes, obtains or possesses any contraband.
(2) Supplying contraband is a Class C felony. [1971 c.743 §194; 1983 c.815 §9; 1997 c.249 §48]
Furthermore, a 1978 Oregon Supreme Court decision, State v. Meyer, found that information alleging that a jail inmate possessed marijuana was sufficient to charge the inmate with a violation of ORS 162.185.
Marquis writes that Measure 91 "takes away" criminal penalties for jail smuggling, but in order to do that, Measure 91 would have to directly repeal ORS 162.185 or indicate that it supersedes all state marijuana laws. It does not; Section 58 states:
SECTION 3 to SECTION 70 of this Act, designed to operate uniformly throughout the state, shall be paramount and superior to and shall fully replace and supersede any and all municipal charter enactments or local ordinances inconsistent with it. Such charters and ordinances hereby are repealed.
So state law 162.185 will still be intact and prisoners caught with marijuana and guards or visitors or jail workers knowingly smuggling marijuana to them will still face Class C felonies. What Measure 91's Section 55 is covering is a guard, visitor, or jail worker who unknowingly has their own personal, legal marijuana in an amount less than one ounce on the prison property, so they can't claim Measure 91 makes their personal possession at the prison legal so long as they're not knowingly smuggling it to prisoners.
In other words, Section 55 is a ticket in addition to the Class C felony you get for smuggling weed into prison. I'm just a high school graduate with no law degree and I figured this out; you'd think a sitting District Attorney could see this... if he wanted to.