With a budget that’s gone to pot, is California ready to embrace marijuana—already legal statewide for medicinal purposes—as a magical cure for its economic ills?
Right now, the polls show the outcome to be somewhat of a toss up, but know this: If it loses, we probably haven’t seen the end of it; and if it passes, there are more than enough legal angles to likely keep it stalled in the courts for quite a long time.
A quick primer
Under Proposition 19, individuals 21 years of age and older can legally possess, cultivate and transport marijuana for personal use. It also permits local governments to regulate and tax the commercial production and sale of cannabis to people age 21 and older. Under the law, people would be prohibited from possessing marijuana on school grounds, using it in public, smoking it while minors are present or providing it to anyone younger than 21 years of age. It also maintains the current prohibitions against driving while impaired.
Specifically, possession would be limited to up to one ounce for personal consumption in a residence or public establishment licensed for onsite marijuana use. Cultivation would be limited to private residences only, in a space of up to 25 square feet. If a person owns a parcel, but doesn’t have a residence on the property, the parcel can be used for cultivation, but the size limitation still applies.
Local governments would have jurisdiction and would be able to authorize businesses to sell up to one ounce of marijuana per transaction—and also regulate the hours and location of the businesses. Marijuana would be able to be transported from one dispensary to another without regard to local laws of intermediate localities, which may not have legalized cannabis. Municipalities would also be able to collect taxes on the sale of marijuana to raise revenue or offset any costs associated with marijuana regulation.
When it comes to criminal and civil penalties, existing laws that prohibit selling drugs to a minor and driving under the influence would be maintained, and it would still be illegal to transport marijuana between states or internationally. as would an employer’s right to address on-the-job consumption that might affect an employee’s job performance. And employers would have the right to address consumption (on the job or otherwise) that might might affect an employee’s job performance, though there is debate about employers’ ability to fully disallow it.
Under the proposition, strict guidelines would be established for those licensed, permitted or authorized to sell cannabis:
• Sell or give away marijuana to someone under 21? You’re banned from owning, operating or being employed by a licensed marijuana establishment for one year.
• Sell or give away marijuana to someone older than 18, but younger than 21? You’ll be imprisoned in the county jail for up to six months and you’ll be fined up to $1,000 per offense.
• Sell or give away marijuana to someone age 14 to 17? You’re going to state prison for a period of three to five years.
• Sell or give away marijuana to someone under the age of 14? You’re on the way to state prison for a period of three to seven years.
One thing’s for certain. For it or against it, those embroiled in the political fight to see it win or lose aren’t at a loss for words when it comes to supporting their position.
A pot economy?
With the state still reeling from the economic sucker punches of the last two years, proponents of legalization have jumped on the bandwagon of fiscal responsibility. According to the U.S. Department of Agriculture (USDA), illegal marijuana is now California’s top cash crop, generating $14 billion per year in sales—twice the amount of milk and cream, which is the second largest agricultural commodity in the state. Were the state to impose a sales tax of 10 percent on legal marijuana sales, the windfall could be as much as $1.4 billion
As currently written, Proposition 19 lets the localities that decide to legalize marijuana collect taxes.
Napa County District Attorney Gary Lieberstein, who opposes the proposition and refers to it as a “poorly worded initiative and a concept that’s just wrong,” says it’s “packaged in a way that sounds positive, but the only taxation available is at the local level,” and, in his opinion, “it won’t reduce the state deficit by a penny.”
State Assemblyman Tom Ammiano, who represents the 13th District (San Francisco) and who, in February 2009, also introduced legislation to tax and regulate marijuana in the California Assembly (AB390, which passed a policy committee before expiring due to legislative deadlines; it’s been reintroduced as AB2254), says otherwise. “The way it’s written, municipalities will impose taxes [and reap the revenue], but it’s tethered to the state’s tax structure as well.” Ammiano says if the proposition passes, the State Board of Equalization as well as the California Senate and Assembly tax and revenue committees will likely establish a middle ground to ensure some of the taxes collected “will go to the state regardless.”
Obviously, the $1.4 billion in new tax revenue is nothing to scoff at, but it assumes the state will be able to collect sales tax on marijuana at current market prices. Both advocates and opponents say legalization could lower cannabis prices—possibly by as much as 60 to 80 percent, which would reduce the potential sales tax windfall by the same amount.
The price to be paid
While the potential for increased tax dollars garners the limelight, what the state and local governments might save by not having to prosecute and incarcerate individuals for possession of marijuana might be one of the biggest benefits, according to the California Legislative Analyst’s Office. In its report on fiscal impact of the proposition, the office said the savings would potentially be “up to several tens of millions of dollars annually due to the reduction of individuals incarcerated, on probation or on parole.” The report also said there’d be a “minor reduction in state and local costs for enforcement of marijuana-related offenses and the handling of related criminal cases in the court system.”
Meanwhile, the state could expect to spend more on the costs of substance abuse programs due to “speculated increase in usage of marijuana” once it’s legal; earn less from the state’s medical marijuana program as adults over 21 would be “less likely to participate in the existing program” since obtaining marijuana would be easier;” and there would be a reduction in state fines collected under current state law in regard to marijuana possession.
And then there’s the “$40 billion question”: Would passage of Proposition 19 cost the state its federal funding ($9.4 billion of which is for K-12 education)? The Legislative Analyst’s Office says the proposition “puts every governmental entity in California, every California business and every California nonprofit out of compliance with the Drug-Free Workplace Act of 1988.” Compliance with the federal act is a condition precedent to receiving federal contracts of $100,000 or more and federal grants of $100,000 or more. As a result, the California Chamber of Commerce believes passage of Proposition 19 could cost hundreds of thousands of jobs in the state.
The chamber also opposes the proposition because it says it creates a different, higher standard for employers to be able to discipline employees who use marijuana while at work than for those employees who use alcohol. Current law lets employers discipline employees who are under the influence of drugs or alcohol. The proposal would create a separate and higher standard for marijuana use to a level that requires the employer to prove that the employee is actually impaired, not just under the influence.
In a prepared statement, Allan Zaremberg, president/CEO of the California Chamber of Commerce, said “This initiative has dangerous implications and puts the safety of workers in jeopardy. If this measure passes, California’s employers would not only face higher costs, but they would be put in the difficult position of having to protect the rights of some employees while allowing other employees to be put in harm’s way.”
Supporters say the Drug-Free Workplace Act is a tired argument that’s been used before. Lynnette Shaw is one of the founders of the Marin Alliance for Medical Marijuana. Located in Fairfax and licensed since 1997, the alliance is the “longest licensed medical cannabis club in the nation,” according to Shaw.
Opponents of marijuana legalization “used the same federal funding argument when the medical marijuana initiative was on the ballot in 1996,” Shaw says. “Prop. 215 passed and federal laws haven’t caused one program in the state to be dropped over medical marijuana. If the feds were serious about yanking funds, they’d have done it by now. Nothing has happened. I can’t see how they’re going to try to use that argument again.”
Crime and punishment
Supporters of Proposition 19, by and large, also cite humanitarian reasons for passing the initiative.
“I don’t believe people should be going to jail for possession of cannabis,” explains Robert Jacob, executive director of Sebastopol’s Peace in Medicine Healing Center, which dispenses medical marijuana in addition to providing a wide variety of other health services. “Why expose an 18-year-old to the jail system for having a bit of pot in his or her pocket? It exposes them to a horrible culture and stains their record for life; when they get out of jail, they’ll have more trouble reintegrating into regular society, getting a job and functioning normally. I believe the number one benefit to passage [of the proposition] is the fact that young people won’t be going to jail for such an unworthy cause.”
According to Shaw, 789,000 people were arrested nationwide in 2009 for using, growing and selling marijuana—81,000 in California alone (60,000 users/sellers and 21,000 growers).
“It’s an incredible waste of human resources, tax dollars, jails, time, court dockets, you name it. The police need to be doing stuff much more important than chasing marijuana users,” Shaw says.
Shaw is no stranger to legal entanglements regarding marijuana, having helped medical marijuana patients served by the Marin Alliance for Medical Marijuana (MAMM) win court case after court case. Between 1997 and 2002, Shaw says the county of Marin repeatedly tried to prosecute legal medical marijuana users—and lost every MAMM case. “They tried to use Marin as a lab to overturn Proposition 215 [the medical marijuana initiative]. I have the Rolodex from hell when it comes to lawyers,” she laughs.
Her favorite story is of a patient who filed for restitution after his 15 marijuana plants were confiscated a second time (after being cleared by the courts the year before).
“The narcs, when they raided him, went on the front page of the Marin Independent Journal, claiming it was a $6 million bust for 15 plants. This was the same patient they’d busted the year before, for the same amount of plants. We’d won the year before, so we got a document from the judge stating he had a right to grow 15 plants under Prop. 215. Then we asked for $6 million restitution. All of a sudden, the same guy who had said the raid was worth $6 million claimed the plants were worth $100 each, or $1,500. We pulled out the front page newspaper story, the judge compared and noted there was a major discrepancy. The court awarded the patient $1,000 per plant for a total of $15,000. After that, the county quit pulling our plants. We figure the cessation of patient investigations, arrests and medical marijuana prosecutions ending in civil rights violations, since 2002, has saved the county millions of dollars in court and police costs—and has shown that Marijuana Peace is workable,” Shaw says.
But Lieberstein says supporters are overestimating the incarceration of marijuana users. “If you look at state statistics, the reality is we’re nearing 180,000 inmates, and less than 10 percent are there for trafficking in narcotics, and marijuana would be an insignificant minority of that total,” he says.
Lieberstein strongly believes legalization of marijuana would lead to more crime, not less. “Of all the cases I handle in Napa, 70 to 80 percent have some relationship to alcohol and drug abuse. Most of the domestic violence cases involve drugs and alcohol. And if the case isn’t directly related to drugs, usually the person has a substance abuse problem of some sort,” he says.
But passing the initiative has the potential to reduce crime as well. Limiting the influence of the Mexican drug cartels is also cited as a benefit.
“It’s like Al Capone,” explains Ammiano. “When Prohibition happened, it was a boon to criminal forces all over the nation.” Likewise, marijuana prohibition is strengthening the power of Mexican drug cartels, which have placed large plantations in remote areas throughout the state. They’re “guarded and booby trapped,” according to Ammiano, and pose imminent danger to law enforcement officials and even the occasional lost hikers who wander a little too far, only to find themselves staring down the barrel of a gun. “These aren’t benevolent hippies with a little pot patch,” Ammiano says.
By legalizing marijuana, supporters believe drug cartels, which currently get about 70 percent of their revenue from illegal cannabis sales, according to the Wall Street Journal, would be squeezed out of the picture by legal growers.
End users
No study of the proposition would be complete without asking two questions: Would legalization of marijuana lead to increased use? And do we really need another legal drug?
Current street prices for marijuana are between $150 and $400 per ounce, depending on quality. If legalization leads to price reductions of 60 to 80 percent, that drops the cost down to $30 to $60 per ounce on the low end and $80 to $160 per ounce on the high end. It follows that the drug would be much more “user friendly” at the lower price.
“I don’t care what anyone says, it’s a gateway drug and it’s addictive,” Lieberstein says. “There was a recent study among high school seniors, and more than 40 percent had tried drugs—and the first drug most of them tried was marijuana. A lot of people in my generation [55 years old] don’t see the big deal, but they fail to understand that the concentration levels of the main ingredient, THC, are five times as great as when they smoked in the 1960s and ’70s. Unlike other medications, where you’re told about contraindications and side effects, there are no real marijuana studies. You don’t know what’s in the pot you’re smoking. Wine tells you alcohol content, but there’s nothing to tell you about marijuana. There are no government regulations on what can be put into it. And what about the carcinogens?
“[If marijuana is legal], it will be much more available and more people will use it. [The proposition] makes it a misdemeanor for someone over 21 to supply it to someone between 18 and 21, which means they expect it to happen. It will open up a much bigger market for users under the age of 21, because everyone over 21 can have it and there will be more people to supply it.”
Lieberstein, who’s been a prosecuting attorney for 25 years, actively works in drug prevention outreach programs with kids. “We tell them it’s all about making good choices. We’ve worked so hard to get them to not use drugs. In a sense, this is opening up Pandora’s Box. We have a hard enough time keeping kids in school. This won’t help.
“Many advocates say marijuana is organic. Well, so are opium and hallucinogenic mushrooms—and they’re not legal. We don’t need another legal drug. It’s not the direction we should be going,” Lieberstein says.
Under the influence?
Lieberstein is also concerned with the potential increase in individuals driving under the influence of marijuana. “Unlike alcohol, there are no specific tests available to determine whether someone is definitively under the influence,” he says. “Marijuana can stay in the body for up to 36 hours after consumption. With alcohol, extensive research has shown that everyone is under the influence at 0.08 blood alcohol level, but there’s no counterpart for marijuana.
“Again, with the high concentration levels of THC today, a person’s driving abilities could be greatly diminished after one or two puffs of a marijuana cigarette. The potential increase in risk to public safety associated with legalization aren’t worth the alleged or potential benefits.”
Mothers Against Drunk Driving (MADD), one of the major opponents of Proposition 19, agrees with Lieberstein. Says Brenda Frachiseur, the organization’s assistant state executive director, “MADD believes the legalization of marijuana will potentially create a situation in which more people will use it.”
Frachiseur says MADD was one of the first to oppose the initiative, because it “continues to work against all forms of impaired driving, and it stands to reason if we legalize marijuana, we’ll increase the number of impaired drivers on the road.
“In a recent report from the National Highway Traffic Safety Administration, it was concluded that drugs other than alcohol were present in 16 percent of nighttime and weekend drivers—and marijuana was the most commonly detected drug,” Frachiseur says. “Just because a drug is legally obtained doesn’t mean the user isn’t impaired. Unfortunately, that seems to be an emerging trend.” And that, she points out, includes medical marijuana users who “get behind the wheel and drive.”
Peace in Medicine’s Jacob counters, “I don’t know that there’s any study or proof that cannabis use has the same physical effects as alcohol, or that it causes the same societal problems as alcohol. You don’t see fist fights on the corner among medical marijuana users, and they don’t suddenly beat their spouse or commit family violence because they’re stoned. To suddenly assume it has the same affect in one’s physical ability is jumping a little far.”
A look down the road
Whether or not Proposition 19 passes, legalization of marijuana will continue to be on the front burner in California. Ammiano’s proposed legislation “accommodates the initiative,” should it pass, he says. If not, “the legislation will move forward and we’ll see what the future holds for [marijuana legalization supporters]. [The Legislature] is much more sympathetic than in the past. And this issue is so much bigger than California. Legislatures in Washington, Maryland, Illinois and Rhode Island are also pursuing legalization.
“It’s good that the train is out of the station and California is in the lead,” Ammiano says. “I guarantee this isn’t an isolated phenomenon.”
Comedian and social commentator Bill Maher once said, “Whenever the people are for gay marriage or medical marijuana or assisted suicide, suddenly the ‘will of the people’ goes out the window.”
Come November 2, the “will of the people” will at least be heard. And once again, all eyes will be on California.
Supporters, Opponents & Resources
Following are some of the major groups and personalities (pro and con) who’ve taken a stance on Proposition 19. For a comprehensive list, you can visit http://en.wikipedia.org/wiki/WikiCalifornia_Proposition_19.
Supporters
Law Enforcement Against Prohibition
California NAACP
Oakland City Council
Berkeley City Council
California NORML
Jocelyn Elders, former United States Surgeon General
American Federation of Teachers
ACLU of California
Republican Liberty Caucus
United Food and Commercial Workers Union
Green Party of California
United States Libertarian Party
California Young Democrats
Jeffrey Miron, Harvard University Department of Economics
Opponents
California Police Chiefs Association
Mothers Against Drunk Driving (MADD)
California Chamber of Commerce
D.A.R.E. America
Meg Whitman
Jerry Brown
Diane Feinstein
Barbara Boxer
California Narcotics Officers Association
California District Attorneys Association
California State Sheriffs’ Association
Dennis Peron, co-author of California Proposition 215
California Democratic Party
California Labor Federation
California League of Cities
