Minnesota marijuana legalization backers intended to remove penalties for underage use. Little-known statute shows they might not have

Editor’s note (7/26/23): An earlier version of this story and headline have been replaced after new information came to light about default penalties that exist in Minnesota for statutes that don’t expressly define them. As such, it appears law enforcement in Minnesota could cite someone under 21 years of age possessing or using marijuana with a petty misdemeanor. For transparency, MinnPost’s original story — containing incorrect information from multiple sources — has been left intact at the bottom of this story.

Sponsors and drafters of Minnesota’s new recreational marijuana law say they intended to remove legal penalties for underage people who use or possess small amounts of marijuana. While the law states that such acts are illegal, it removed the penalties for violations.

But their attempt to cancel sanctions for marijuana use by those under age 21 by removing charges and penalties from state law might have failed to complete the task. Another section of state law not amended by the new recreational marijuana law, also known as House File 100, contains a default penalty — a petty misdemeanor — for any acts that are made illegal but lack specific penalties.

“Punishment for prohibited act,” a section of state law (645.241) states: “When the performance of any act is prohibited by a statute, and no penalty for the violation of the same shall be imposed in any statute, the doing of such act shall be a petty misdemeanor.” That law was amended in 2014 to reduce the default penalty from a misdemeanor to a petty misdemeanor, which removed any possible jail time. Petty misdemeanors are also not considered crimes under state law.

House File 100 includes a section that lists what is not legal under the law and includes this language:  “use, possess, or transport cannabis flower, cannabis products, lower-potency hemp edibles, or hemp-derived consumer products if the individual is under 21 years of age.”

But both the prime state Senate sponsor and the lead House staff attorney said the intent of the bill was to remove penalties for use and possession of small amounts of marijuana for those under 21, including juveniles.

In a MinnPost article posted Wednesday morning, Sen. Lindsey Port, DFL-Burnsville, said: “It was intentional,” when asked about the apparent decriminalization of underage use of marijuana.

“What we learned getting ready for this bill and talking to folks in other states is that prohibition doesn’t work. Penalizing folks for possession of marijuana is the least effective way to end the illicit market,” Port said. “The best way to get young people to use cannabis less is to use real money to educate them in ways that they can hear, which means peer to peer programming, and having a legal market where you have to be 21 to buy and you have to go to a dispensary to buy it. 

“The illicit market is how kids are getting access to cannabis right now. That is what we want to end,” Port said. “We’re doing our best in this bill to end that but continuing the penalties is just the best way to perpetuate harm.”

And during a continuing legal education seminar earlier in July, the lead House staff attorney on the bill said that when the bill removed the criminal penalty for marijuana use and possession for those 21 and older, it also removed the penalty for those under 21.

“The state law is silent on folks who are under 21,” House research attorney Ben Johnson told lawyers and law students during the seminar. “It is not a protected right in statute, something that you are automatically allowed to do. However, there’s no specific prohibition and there’s certainly no criminal penalties.”

But by not amending the default penalty in 645.241, the sponsors and drafters might have failed to do what they intended. A handful of court cases have imposed penalties for illegal acts that lack specific sanctions by citing that default penalty section of law.

The apparent conflict between what bill sponsors wanted and what the bill actually did was discovered by legalization advocate and lobbyist Kurtis Hanna. He said he was familiar with the default penalty provision from researching ways to get state agencies to follow legislative directions on providing reports and information.

“I was lobbying on the bill and I didn’t think that the bill legalized possession or use by minors because I was already familiar with 645.241,” Hanna said.

A petty misdemeanor is the lowest level offense in state law.  “Petty misdemeanor means a petty offense which is prohibited by statute, which does not constitute a crime and for which a sentence of a fine of not more than $300 may be imposed,” state law says. It does not include jail time, is not considered a crime but can show up on someone’s court record.

But the intent of sponsors and drafters was to assure that a juvenile who is found to be in possession of marijuana and using marijuana would not face sanctions and would not enter the criminal justice system. 

“If you have a policy goal of reducing policing — particularly the policing of certain communities — you’re not going to want to impose a state law,” Johnson said at the CLE seminar.

Reached Wednesday afternoon, Johnson acknowledged the legal conflict between the intent of the bill and 645.241.

“The new law repeals the specific offense of possessing a small amount of marijuana and created several penalties for possession of cannabis flower and related products,” Johnson wrote. “It did not establish a specific offense or penalty for possession by someone under age 21. However, the law does say that an individual under age 21 may not use or possess cannabis and related products except for certain medical cannabis products. Law enforcement and prosecutors will have to decide if they believe the general petty misdemeanor provision in section 645.241 applies in this situation and, if challenged, a court may be asked to resolve that question.”

If the issue reached the courts, a legal argument could be made that by removing the specific penalties for use and possession by people of all ages, the intent of the Legislature was that no sanctions should apply to underage users. 

MinnPost has reached out to Port and House sponsor Rep. Zack Stephenson and will update this post when they respond.

MinnPost’s original story that was posted the morning of July 26, 2023, is below. Note that it contains incorrect information from multiple sources. 

The Minnesota recreational marijuana bill that legalized possession and use for residents 21 and older did something else at the same time: It decriminalized possession and use of cannabis for residents under 21. 

Starting Aug. 1 there will be no penalty for juveniles to possess and use cannabis. And unless cities and counties act by passing local ordinances against underage use, juveniles and anyone else can smoke and vape cannabis in most public places.

Sen. Lindsey Port, the Burnsville DFLer who was the lead sponsor of HF 100 in the Senate, said juvenile decriminalization of use and possession of small amounts of marijuana was intentional.

“There are strict penalties, in fact the strictest in the bill, for selling to underage people.” Port said Tuesday. “But what we learned getting ready for this bill and talking to folks in other states is that prohibition doesn’t work. Penalizing folks for possession of marijuana is the least effective way to end the illicit market.”

Port said states that have already legalized adult-use cannabis have seen a drop in youth use of marijuana after legalization. “The best way to get young people to use cannabis less is to use real money to educate them in ways that they can hear, which means peer to peer programming, and having a legal market where you have to be 21 to buy and you have to go to a dispensary to buy it. 

“The illicit market is how kids are getting access to cannabis right now. That is what we want to end,” Port said. “We’re doing our best in this bill to end that but continuing the penalties is just the best way to perpetuate harm.”

Someone reading the bill could assume that House File 100 makes it illegal to smoke and possess for those under age 21. When it lists the items that people in Minnesota may not do, it states: “use, possess, or transport cannabis flower, cannabis products, lower-potency hemp edibles, or hemp-derived consumer products if the individual is under 21 years of age.”

But unlike other items listed among the may-nots, there is no parenthetical reference to existing state criminal code, because that section is repealed by the new law. It was the only state law that carried criminal penalties for possessing and using small amounts of marijuana.

That former law was age neutral.

For marijuana possession, “there is no distinction in the law right now between whether you’re a juvenile or an adult,” said Ben Johnson, a Minnesota House research attorney during a continuing legal education course he led earlier this month. “It’s a petty misdemeanor if you’re 15 and it’s a petty misdemeanor if you are 50. There’s no difference.”

Starting Aug. 1, those 21 and older will have a legally protected right to consume marijuana and possess up to two ounces in public. But younger people will face no criminal sanctions for the same.

“Underage possession and consumption is not illegal under state law,” Johnson said during his presentation to an audience mostly of lawyers and law students. “The state law is silent on folks who are under 21. It is not a protected right in statute, something that you are automatically allowed to do. However, there’s no specific prohibition and there’s certainly no criminal penalties.”

The new law does make it a crime to sell to people under the age of 21. And possession of more than two ounces in public for anyone carries criminal penalties. Those under 21 cannot work in the new businesses being created under the new law. “But if a person is under 21 and happens to possess it — say one joint or a small bag of marijuana, there’s no criminal penalty,” Johnson said.

As with the revelation earlier this month that the new law made Minnesota one of just four recreational marijuana states to allow public consumption of cannabis, local governments will have to decide whether they will make possession and use for those under 21 a crime in their jurisdictions.

“If a local community like White Bear Lake has an ordinance, it can say it is a misdemeanor if you are under 21 and you possess it,” Johnson said. “They have that authority.”

Already, at least five Minnesota cities are preparing ordinances to block public smoking and vaping of marijuana. Adding misdemeanor penalties for those under 21 could be considered as well. Johnson said as long as local governments don’t infringe on the protected rights of those 21 or over to possess and use the drug and to smoke and vape in private places, local governments can pass their own ordinances. 

Tobacco possession and use is handled in a similar way. No state law explicitly prohibits smoking by juveniles, though purchase by people under age 21 is illegal and subject to penalties. Local ordinances can prohibit it, and school boards can pass rules against it, however.

Alcohol, however, is treated differently. Those under 21 who possess or consume alcohol face misdemeanor charges.

Port said she wasn’t certain that local governments could add penalties for underage possession and use of marijuana. But she said doubted law enforcement would be devoting much time to such actions, either way.

“This is not going to be an area where law enforcement will spend a lot of its time,” Port said. “It’s gonna be much more focused on folks who have large quantities who are likely dealing in the illicit market.”

Col. Matt Langer, the chief of the Minnesota State Patrol, described underage use and possession in HF 100 as “a crime without a penalty.” He said his troopers will be concentrating on preventing impaired driving and those laws will apply to any legal driver, regardless of whether they are over 21 or under 21. It will be illegal, as it already is, to drive under the influence of drugs including marijuana. It will also be illegal to smoke or vape in a car and to have an open container of marijuana within reach of a driver or passengers.

His troopers would not routinely confront the issue of underage simple possession and use, he said. And he did worry about the impact of patchwork rules. 

“The patchwork of laws and ordinances often leave the public confused, and we don’t have an interest in taking enforcement action on people who are confused,” he said. “We prefer to educate so we can prevent having to take enforcement action.”

Safety concerns without penalties

Opponents of legalizing recreational marijuana were especially concerned about the impact of legalization on young people. There was a push to increase the age when use and consumption would be allowed to 25, citing potential harm to developing brains. Supporters blocked that change for fear that it would lead to expansion of the illicit market aimed at customers between the ages of 21 and 25.

Studies of youth use vary. A California analysis found that in states that have already legalized cannabis for recreational use, consumption among young people increased versus states where it remains illegal. 

But other studies, like this based on youth risk behavior surveys, found no increase in youth use when medical marijuana was legalized and a slight decline after recreational marijuana was legalized. 

The decriminalization of use and possession for underage people follows changes in other states that have tried to remove reasons for young people to be brought into the criminal justice system. New Jersey, for example, requires warnings when underage people are caught with alcohol or marijuana. The leniency has been criticized by local governments who say it makes it difficult for police to react to alcohol and marijuana use during rowdy holiday weekends. 

In Minnesota, Johnson told his audience of mostly lawyers that sponsors of HF 100 frequently balanced different policy goals regarding legalization.

“If you have a policy goal of reducing policing — particularly the policing of certain communities — you’re not going to want to impose a state law,” he said.

Sen. Carla Nelson, R-Rochester, was an opponent of the bill who argued that it wasn’t ready for passage, describing it as half-baked. Learning after its passage of issues such as legalized public consumption and decriminalization of youth possession and use demonstrates that, she said.

“I’m not surprised,” she said. “We were very clear from the very beginning that it did not have all the checks and balances.” Of the juvenile decriminalization, Nelson said: “How can anyone think that’s a good idea?”

“It is frustrating, and I think moms and dads should be concerned, health care should be concerned, public safety is concerned,” Nelson said.

And Nelson, like Port, said it isn’t clear to her whether local governments have the authority to add their own penalties for underage use and possession of marijuana. The 2024 Legislature might be the venue for that, she said.

“It is going to be a ‘fix-it’ session next year,” she said.

Kim Bemis, the chair of Smart Approaches to Marijuana Minnesota and a drug counselor focusing on teens, said he was aware of the decriminalization aspects of the bill but had difficulty getting legislators to focus on that issue.

“The bill was so huge and complicated that this is one of the details that nobody could pay any attention to,” Bemis said. He agrees that the decriminalization for underage use was intentional.

“They didn’t want the police involved in any kind of harassment of adolescents or set up any sort of juvenile record,” Bemis said. But he said drug courts, an alternative to the traditional criminal justice system that focus on treatment, have been successful in intervening at an early stage with people who could be progressing toward substance use problems.

For example, if a 12-year-old is using marijuana, catching it and documenting repeated use can help get the child treatment help, Bemis said. “There are lots of problems with the law. Hopefully there will be a way to go back and correct that,” he said. 

He said 90% of the parents who contact him have children using marijuana.

Bemis said relying on cities and counties to fix the issue of public consumption and juvenile use goes against the principle of bill drafters to limit local control so as to avoid different rules jurisdiction by jurisdiction.

“For the next year and a half or two years they’ve kind of thrown it back to the local communities to figure it out while the cannabis management office gets its act together,” he said. 

Sponsors of the bill frequently said they didn’t want a patchwork of local regulation that could feed an illegal market in cities that were more strict than the state. It was that reasoning that led lawmakers to prohibit any local bans on sales and use, because sponsors said such bans could boost the illicit market while the bill’s overall goal is to reduce it.

But under pressure from cities and some swing-vote legislators, local governments won the ability to register marijuana retailers and collect fees. Local agents can enforce state laws and even shut down violators, subject to state review. They won some zoning powers to determine where stores can be located and were allowed a cap on the number of stores equal to one retailer for every 12,500 in population.

Another section of the new recreational marijuana law gives the still-forming Office of Cannabis Management the authority to “prevent unauthorized access to cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products by individuals under 21 years of age.”

But it is unclear whether the new office will have authority to prevent such use and possession through rule making. Agencies are not empowered to create criminal penalties, for example.