dissenting. Defendant was sentenced to an eighteen-month to three-year prison term for “dispensing” a regulated drug in violation of 18 V.S.A. § 4224(g). His crime was sharing a marijuana cigarette among friends in a prison bathroom. While defendant might properly have been charged and convicted of possession, 18 V.S.A. § 4224(a), I do not believe that his actions constituted an offense under § 4224(g).1 The matter is significant, because the potential penalty for violating § 4224(g) (imprisonment for not more than five years and a fine of not more than $10,000) is harsher than the penalty prescribed under the possession statute (six months .or $500 for a first offense). Defendant’s sentence greatly exceeds the maximum permissible for possession.
18 V.S.A. § 4224(g) provides in part:
A person knowingly and unlawfully manufacturing, cultivating, compounding, dispensing, administering, prescribing, or selling for a consideration a regulated drug shall be imprisoned ....
The statutes define the term “dispense” as follows:
“Dispense” includes distribute, leave with, give away, dispose of, or deliver.
18 V.S.A. § 4201(7). The Court concludes that defendant “gave away” some marijuana and therefore “dispensed” it under § 4224(g).
I cannot agree. Sharing a lit marijuana cigarette — “passing a joint” — does not constitute “dispensing” as that term is com*635monly understood or as defined in § 4201(7). The State has pointed to no cases that construe the term in such sweeping fashion.2 The term, rather, connotes a more controlled activity, much as a pharmacist dispenses medicines. Black’s Law Dictionary defines the verb “dispense” as “to weigh out, pay out, distribute, regulate, manage, control.” Black’s Law Dictionary 423 (5th ed. 1979).-As with any criminal statute, we are compelled to construe the terms of § 4224 strictly in defendant’s favor. See State v. Oliver, 151 Vt. 626, 629, 563 A.2d 1002, 1004 (1989).
Black’s definition was cited by the Fifth Circuit Court of Appeals in Palmer v. United States, 340 F.2d 48, 50 (5th Cir. 1964), cert. denied, 381 U.S. 903 (1965), which stated:
The term is particularly appropriate as applied to drugs, and a “dispensary” is a place where a drug is prepared or distributed. In context, the significance of the term is apparent: Congress felt that in the regulation of drugs the broad term “dispense” was more appropriate to the congressional purposes of the legislation than the more narrow term “sell”. The statutory scheme establishes lawful methods for dispensing drugs upon prescription; anyone dispensing drugs outside of the statutory scheme violates the law.
Id. (citations omitted). The defendant in Palmer had arranged sales of two “different lots of amphetamine drugs.” Id. at 49. Even though the court construed the term “dispense” as being “broad,” it clearly did not contemplate a use of the term so broad as to encompass sharing a marijuana cigarette.
*636The Supreme Judicial Court of Massachusetts recently construed a state statute prescribing penalties for any person who “knowingly or intentionally manufactures, distributes, dispenses, or possesses with intent to manufacture, distribute or dispense a controlled substance.” Commonwealth v. Perry, 391 Mass. 808, 811 n.2, 464 N.E.2d 389, 392 n.2 (1984). Noting that the entire statutory scheme authorizes a physician “to prescribe medically necessary controlled substances if required procedures are followed,” the court stated: “The primary purpose of the prohibition against dispensing is to require practitioners to register with the Commissioner of Public Health and to keep records and maintain inventories.” Id. at 812 n.3, 464 N.E.2d at 392 n.3 (citation omitted). Again, the term “dispense” contemplates a controlled procedure for prescribing and distributing drugs, one that might mistakenly be thought by consumers to be officially authorized — not the mere sharing of a cigarette. See also United States v. Badia, 490 F.2d 296, 298 n.4 (1st Cir. 1973) (“the reason Congress included the term ‘dispense’ in [the Comprehensive Drug Abuse Prevention and Control Act of 1970] was to compel physicians to become properly licensed”).
The result in this case, in my opinion, is a manifest injustice. There is no evidence that defendant ever sold drugs. He was not a dealer. He did not even pass out cigarettes among the inmates. All he did was to share the marijuana cigarette he was smoking. For this defendant was charged with and sentenced for a felony, when ordinarily he would have been tried for misdemeanor possession.
The State’s concession at the sentencing hearing, that a thirty-day sentence would have sufficed had the offense occurred in the community,3 is telling. Defendant was charged un*637der the “dispensing” statute and punished under its grievous terms because he committed the offense of “passing a joint” while he was incarcerated. That offense would be a misdemeanor if committed on the street, but was here turned into a felony. The Legislature, however, has not chosen to enhance the penalties for marijuana possession when the situs is a correctional facility. It clearly has the power to do so, see 18 V.S.A. § 4224(h) (enhancing penalty for selling or “dispensing” to a minor), but it has not exercised that power. See Liparota v. United States, 471 U.S. 419, 424 (1985) (definition of elements of a crime entrusted to legislature). In my view, the State incorrectly took it upon itself to implement a policy of enhanced penalties for marijuana possession in a correctional facility.
I would reverse. Justice Dooley joins in this dissent.
The statutes have since been amended and recodified. See 18 V.S.A §§ 4230-4248. The crime alleged here would not even arguably be a felony under the recodification. Section 4230(a)(1) makes possession of small quantities of marijuana a misdemeanor, and § 4230(b)(1) makes its sale in small quantities a felony. The term “dispensing” does not appear. Since defendant was not alleged to have sold marijuana, he could, today, only be prosecuted under the “possession” provision.
The sole case cited by the Court on this point is State v. Bush, 93 Idaho 538, 466 P.2d 578 (1970). In that case, the defendant was convicted of violating a statute making it “unlawful for any person to sell, serve or dispense beer to... any person under 20 years of age,” after he repeatedly urged a minor to help himself to beer in the defendant’s car, which the minor proceeded to do. Id. at 539, 466 P.2d at 579. The court held that “serving and dispensing” need not entail a commercial transaction. Id. at 540, 466 P.2d at 580. The court did not, however, independently construe the term “dispensing.” In a special concurrence, Justice McQuade expressed concern over the ambiguity in the statute, noting; “The term ‘dispense,’ as used in [the statute,] appears to refer only to commercial sales of beer.” Id. at 541, 466 P.2d at 581 (McQuade, J., concurring).
The deputy state’s attorney testified before the sentencing judge as follows:
It’s clear from the presentence report that there is drug use in almost all of our correctional centers throughout the state. That it’s a problem. It encourages a power structure within the facilities. ... You’re essentially dealing with a captive audience in the literal sense. So, I would ask the *637Court in this case to send a clear message and the message isn’t really addressed to the general public that marijuana shouldn’t be smoked in the jails. It’s addressed to the inmates who are already doing sentences. So, I’m concerned that the type of sentence that might be given out in a normal marijuana case of thirty days or something is maybe of very little consequence to an inmate who is already serving a sentence.