Tuesday, August 10, 2010

Thoughts on the Proposition 19 Debate

My old friend Mark Kleiman (we were in college together and have stayed in close touch over years since we are both very interested in drug policy) had an op-ed in Los Angeles Times on July 18 on Proposition 19. Mark is usually brilliant, and great at developing "thought experiments." Mark is also a contrarian. He loves to argue, especially against the conventional wisdom. But unless I've misunderstood him, I think he's being sneaky in this piece.

His main point is that California voters can't "legalize a federal felony," namely growing or selling marijuana.

However, I think he misses the main effect of Proposition 19 which is to legalize adult personal possession and personal cultivation of marijuana in a plot of no more than 25 square feet (a five foot by five foot little garden) under California law, and permit a person to transport their own marijuana. It will remain a crime for anyone to provide marijuana to a person under 21 years of age, and serious crime to distribute to kids under 18, with very heavy penalties for distributing to children under 14.

For those adults who simply use cannabis on social occasions -- the overwhelming majority of users -- this amounts to functional "legalization." The police who arrest the average Californian who uses marijuana is operating under state law, such as a deputy sheriff, a city police officer, or a California Highway Patrol officer. Proposition 19 will stop those arrests.

The truth of Mark's point that "California voters can't 'legalize a federal felony,'" depends, to paraphrase Bill Clinton, on what "can't" means.

Californians "can't" change federal law in a state initiative. But they can legalize conduct that is a federal felony as far as California law goes.

As everyone knows, many laws may be "on the books," but they are minimally enforced, if ever. In Washington, D.C., for example, adultery was a crime until recently, even when Newt Gingrich was cheating on his second wife. You know, when they "legalized" adultery in the District of Columbia, there was no outrage, or apparent change in sexual mores.

But despite all the adultery there used to be in Washington, D.C., no one can recall an arrest or prosecution for the crime. Now there are three different reasons for this. The first is that, even though adultery hurts society by breaking up families and hurting children, most people (including cops, prosecutors and judges) don't think it warrants criminal punishment. In that sense, it is like simple possession of marijuana in that a majority of people do not believe you should go to prison or jail if you possess -- even though the law says you can.

The second reason for the lack of arrests is that the police have more important things to do. Even if a cop had probable cause to make an arrest for adultery, he or she would not do it because it is unimportant.

The third reason is that there are not enough police to undertake any more than cursory enforcement. Assume that the Chief of Police said that she wanted to strengthen families by prosecuting adulterers. That's simply just hot air. She doesn't have enough cops to do it. She doesn't have the ability to get behind the closed doors.

The federal law, 18 U.S.C. 844, says that to possess any quantity of marijuana is a misdemeanor, with a minimum sentence of a fine of $1000, and potential imprisonment of up to a year. Yet of the 20 to 30 million Americans who each year use marijuana (and possessed it, even if it was for the moment they held a joint, a pipe, a vaporizer, or "an edible"), no more than a couple hundred persons were convicted of that federal crime -- and that is because they tried to bring it into the country, they tried to bring it onto an airplane or they did it in a National Park, on the Mall in Washington, or at the federal Wolf Trap concert venue. The odds of the average pot smoker being convicted in federal court are smaller than 1 in 100,000.

Or another way of looking at it is that under federal law, in a practical sense, it is already legal to possess marijuana. I repeat, in a practical sense, it is already legal, as far as federal law goes, to possess marijuana. But not in a psychological sense; not at all in the sense of guaranteeing liberty.

The federal government is fairly zealously prosecuting large scale marijuana growers. But if you were growing 25 square feet of marijuana in California right now, and you were not selling it, your risk of being prosecuted by the federal government is pretty slim. They are looking at much bigger growers than that. Your legal risk is from the officers and deputies who enforce the laws of California.

Essentially all three of the reasons that adultery was not prosecuted in Washington, D.C. would be applicable to California if Proposition 19 passed, and that left only federal agents to prosecute marijuana possession and personal cultivation -- it is not that important, and there are not enough of them.

What really "can't" happen is that the federal government will enforce those laws in any meaningful way! Marijuana will be legalized on the books of California law and in the practice of federal law.

There is another important part of Proposition 19 which would allow cities and counties to license and tax commercial cultivation and distribution of marijuana. This kind of commerce is covered by the Controlled Substances Act. This is the law that was upheld by the U.S. Supreme Court in Gonzales v. Raich in the medical marijuana context. Because the number of cities and counties is small, I believe the Federal government could relatively easily sue them and obtain an injunction to prevent them from actually issuing such licenses. A person who attempted to go into the commercial cultivation and distribution business would not be able to get a valid state license in such circumstances.

Essentially this kind of commercial cultivation distribution is likely to continue under the guise of the pseudo-medical dispensaries that operate in many parts of California -- until the boundaries of federal-state regulation are further clarified.

What is to me most strange about Mark Kleiman's op-ed is that the regime of non-commercial, grow-your-own marijuana is the one that he endorses in his books and articles is the likely outcome of passing Proposition 19.

I strongly support Proposition 19, and will write more about it soon.

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M. Simon said...

The Federal Government PAYS local police to enforce the drug laws.

That is going to be a tough one.

Cam said...

Nonetheless, the drug laws are still morally & ethically WRONG, and they still make it easier for anybody, especially children, to access those drugs. It would be a wise decision to legalize possession of such a drug for adults in almost any circumstance.

Anonymous said...

I thought they could send federal agents into the state in order to enforce the federal law..

Like when thye had DEA raids of the medical marijuana despensaries..

Now, even if the feds enforced these laws..

I would still be for prop 19, it would start a states rights battle. :D

Right now, If I get charged with marijuana possession I cannot claim "HEY THIS LAW IS UNCONSTITIONAL!" because it is illegal under STATE law.

But if prop 19 passes, one may be able to overturn FEDERAL law.