Marijuana Opportunity Reinvestment and Expungement (MORE) Act won't deliver

The Marijuana Opportunity Reinvestment and Expungement (MORE) Act, introduced July 23, 2019 simultaneously by House Judiciary Committee Chairman Jerold Nadler (D-NY) and U.S. Senator Kamala Harris (D-CA), is a major step toward a just and logical marijuana policy in the United States. A central feature of the legislation is the creation of a Community Investment Grant Program to benefit those communities and individuals who have been hurt by marijuana prohibition.

Specifically, the Community Investment Grant Program would provide "eligible entities with funds to administer services for individuals most adversely impacted by the War on Drugs, including—
     (1) job training;  
     (2) reentry services;
     (3) legal aid for civil and criminal cases, including expungement of cannabis convictions;
     (4) literacy programs;
     (5) youth recreation or mentoring programs; and
     (6) health education programs."

This is good stuff, but the grant program is funded by an "Opportunity Trust Fund" that is funded by a tax on all legal cannabis products (except for medical cannabis). The tax is set at 5 percent of the price of the cannabis product is sold.

Taxing is important and hard. Mark Kleiman wrote an excellent analysis of the issues involved in drug taxation in his 1992 treatise, Against Excess, pp. 69-80. Taxes are designed primarily for revenue, but influence behavior. Taxes can reduce unwanted behaviors, but can lead to evasion. If a tax is hard to collect and easily evaded that is counterproductive. Excessively high taxes, such as the infamous 1937 tax of $100 per ounce of marijuana if transferred to a person who was not registered as a physician, etc. was intended as a prohibition. (For comparison, a new Ford sedan cost $850.)

Taxing the price seems stupid to me, completely aside from the question of whether this percentage is the right amount.

First, we have seen that in the states, such as Washington and Colorado, that have first legalized retail sales of marijuana, that the retail price has been steadily dropping. Once this law takes effect, it is likely that the source of funds for the program is going to start shrinking. If we believe that the Community Investment Grant program is a good idea and needs to be funded, relying on a tax that is going to produce less revenue over time is not a good idea. Relying on the price of marijuana that is going to be declining means that the remedial effects of this program will shrink, not grow. 

Second, we need to think about the impact of the taxation on behavior, i.e., on the consumption of THC and how high people are getting. As a public health matter, using the tax to reduce the amount of intoxication is a good idea.  For the millions of recreational users -- once a week or so -- the amount of the tax will be negligible. But for those who use many times a day, the taxation becomes a more serious way to influence behavior by both depressing use or encouraging entry into treatment if use is problematic. Taxing the volume of THC being sold is the best public health approach.

Of course higher taxes are not "free." A tax that is easily and widely evaded is a problem, and collection can be challenging.  If there is wide disparity in the state tax rates on cannabis products, interstate smuggling of cannabis will become like the interstate smuggling of low-taxed cigarettes.

Thus, third, the tax should be imposed at the point of production, not at the retail level, where evasion is easy.

There is extensive evasion of high state and city taxes. In Chicago, according to a 2010 paper, as much as 3/4 of the cigarettes consumed in Chicago were obtained outside the city to avoid paying a $2.68 per pack tax. 

In New York City, the current combined city and state tax on a package of 20 cigarettes is $5.85. Last year, the Mackinac Center for Public Policy estimated that 56% of the cigarettes consumed in New York State were smuggled and the state lost $1.5 billion in tax revenue.

And, as we saw with Eric Garner, who was killed by New York police officer Daniel Pantaleo on the suspicion of selling "loosies" (single, untaxed cigarettes), the enforcement of these taxes can range from erratic to catastrophic.

Taxing at the retail level is counterproductive and potentially dangerous.

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Partnership for a Drug Free America surrenders war on drugs

Thanks to Tom Angell at Marijuana Majority, we know about a news release from the Partnership for a Drug Free America (now the Partnership at drugfree.org) concedes that marijuana will be legalized and sets forth some of the minimum regulations that its says parents want.

Here is the survey drugfree.org released today.

It is clear that they understand the distinction between use and abuse, at last!

It seems that they did not have the money to do a really good survey -- the margins of error are large 4.9 percent and for Washington and Colorado, 6.9 percent.

Half of parents have used marijuana.

32 percent of mothers and 37 percent of fathers support legalization of marijuana for social use by adults.

Parents don't want uncontrolled legalization.

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Washington State Marijuana regulations -- latest

The Washington State Liquor Control Board has published almost final regulations for implementing Initiative 501 for legal marijuana in the state. They are almost 42 pages long.

There will be public hearings on the proposed rules August 6 to 8.
On August 14, the Board will adopt the final rules.
The rules will take effect on September 16.
At that point the Board will begin, for 30 days, accepting applications to be a producer (grower), a processor, or a retailer of marijuana.
Licenses will be awarded on December 1.
It is not clear when licensees will be able to start producing and distributing marijuana. 

Comments from the public can be sent to the board:
By mail:
Rules Coordinator
Liquor Control Board
P.O. Box 43080
Olympia, WA 98504-3080
By e-mail: rules@liq.wa.gov
By fax: 360-664-9689

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5 Myths about legalizing marijuana in The Washington Post

Every Sunday, the Washington Post publishes 5 Myths about some topic in the Outlook section. On June 9, it published Doug Fine's "5 Myths about legalizing marijuana." Unfortunately Fine's first two "myths" are not myths at all, and he states an absurdity that could become the basis of a new myth. I am quite surprised that the editors of the Outlook section printed this.

Fine's first non-myth is that "If pot is legal, more people will use it." Economics and logic both suggest that if pot is legal, more people will use it. Fine notes that California high school students recently reported that cannabis is easier for them to obtain than alcohol. That probably is true for California high school students. But this is not true for tens of millions of adults who currently have no contacts to obtain marijuana.

Even for those adults who have friends who use marijuana, the current illegality is a powerful deterrent to ask them to help you obtain marijuana. You are asking them to aid and abet the commission of a felony -- the distribution of marijuana. You are asking them to go to the trouble of either becoming your dealer or introducing you to their dealer. While some pot dealers may welcome new recommended customers, others are necessarily going to be suspicious and hesitant about exposing their felonious behavior to another potential witness against them. For millions of adults, the introduction of legal marijuana is going to make it easier for them to obtain and to use.

Of course for millions of thoughtful and cautious adults, the consequences of a marijuana arrest -- even if a remote possibility -- are a significant deterrent from use. For starters, the embarrassment in front one's children, spouse, family and friends is a real deterrent. The implication of being something of a dope, even if the arrest is a simple matter of being unlucky, is another. These are every bit as consequential as the risk of missing days at work or losing a job. There are, of course, the inevitable costs of an attorney or perhaps bail, or the hassle of seeking services of the public defender. There is the real likelihood of probation or a conviction.  These thoughts are, for thoughtful and cautious adults, a constant accompaniment to the experience of using marijuana, and a deterrent to use. It suppresses the number of "users" in the past month to be sure, even if use is once or a few times a year. Once legal, the use of marijuana will not have those obstacles,  and adult use is sure to rise.

Fine's use of statistics regarding Portugal and the Netherlands is not really helpful. Drug use is not simply dependent upon statutes, but upon other cultural factors. Regarding Portugal, he surprisingly has confused and misstated the legal status of marijuana as "legal" when it was actually "decriminalized." There is no legal distribution of marijuana there. There situation there is not applicable.

I very much doubt that America will turn into a Cheech and Chong movie, but I think it is absurd to insist that there will be no increase is use if marijuana is legal.

Of course the price is going to come down, and that is almost certain to lead to increased use as well.

Second, Fine says it is a myth that law enforcement officials oppose legalization. Fine quotes my friend from LEAP, Stephen Downing, "Most law enforcers find it difficult not to recognize the many harms caused by our current drug laws."  Steve is correct that they recognize the harms, but that does not mean they endorse legalization.

In fact, the overwhelming majority of law enforcement officials who publicly express an opinion about marijuana legalization still oppose it. I recently testified before the Judiciary Committee of the Maryland House of Delegates regarding marijuana decriminalization. No current law enforcement officer testified in favor, but there were two panels of law enforcement officials (Chiefs of Police, elected Sheriffs, state police commanders, etc.) who testified ardently against decriminalization or legalization. LEAP is an extremely important voice for law enforcement officials, but most of its spokespersons are retired. Only a handful are currently employed in law enforcement. Fine's assertion is simply wrong.

Finally Fine says there are "100 million cannabis aficionados (17 million regular partakers)." On the order of 100 million Americans have tried marijuana at least once. But for many of those who tried marijuana they are not "aficionados," they don't use marijuana and have not for years. This assertion is absurd.

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Colorado medical marijuana industry confronts federal challenges and prospect of new state law

The Washington Post, in a well illustrated story on its front page, Mar. 26, 2013, reports about the Colorado medical marijuana industry that is very heavily regulated under state law but unable to use the banking system (among other things) because it remains outside federal law. Now it faces the challenge of responding to Amendment 64 that legalizes the production and distribution of marijuana to adults for non-medical purposes.

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Attorney General on Washington and Colorado Marijuana Legalization

UPDATE> The hearing went ahead, but Holder told Committee Chairman Patrick Leahy (D-VT) that the Justice Department has not decided its policy, but it will be coming soon. (March 6, 11:30 am)

On Wednesday, March 6, unless it is postponed by a forecast snow storm (a fairly unlikely outcome), U.S. Attorney General Eric Holder will testify before the U.S. Senate Judiciary Committee at the annual hearing on the activities of the U.S. Department of Justice. Under the committee rules, he should have sent to the committee in advance of the hearing a written statement for Senators to prepare appropriate questions for the hearing.

As of mid-afternoon Tuesday, the content of the statement has not been leaked to the press. Perhaps with common Justice Department arrogance they are holding the statement until the last minute.

I think it is very likely that his statement reveals the Department of Justice approach to the marijuana legalization laws of Washington and Colorado. It would be amazing if the Justice Department chose not to put this important matter in writing in advance of the hearing. Everyone knows that it will be a subject of senatorial questions and comment.

If I were the ranking Republican, Senator Charles Grassley (R-IA), I would certainly leak Holder's statement and my reaction to it, in order to try to shape the commentary about it. As the brother of an alcoholic, Senator Grassley is vehemently hostile to addiction and drug use, and any legislation that might liberalize drug use.

If Holder announces that the Justice Department is going to do anything that could be considered as an accommodation of the Washington and Colorado laws, Grassley could condemn the Attorney General and the Obama Administration for being soft on marijuana, etc.

If Holder announces that the Justice Department will oppose Washington and Colorado, Grassley could condemn them for waiting to so long to decide and for any incompleteness in the opposition he could find.

I think the odds are three to one that Justice will oppose Washington and Colorado and say that it is preparing a lawsuit to enjoin the state laws as violations of the Constitution's Supremacy Clause for being in "positive conflict" with the Controlled Substances Act and in violation of U.S. treaty obligations.

I think there is a 1 in 8 chance that the Justice Department will announce that it is going to formally cooperate with Washington and Colorado law enforcement agencies in carrying out their laws and to assure that marijuana from those states does not leak across their state lines to their neighbors or the other 48 states. This would be a terrific outcome in letting the states carry out their laws. It would, of course, be a signal to the other states that they could move ahead with marijuana legalization on their own terms.

Another option is that Justice does not sue to stop Washington and Colorado but simply attempts to pressure them to back off, and engages in the kind of ad hoc prosecutorial harassment of the marijuana industry such as we have seen in California.

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Legal Marijuana: Searching for the federal response to CO and WA

On Jan. 8, 2012, The Brookings Institution held a 90 minute forum, covered live on C-SPAN, on how the federal government might respond to CO and WA marijuana legalization laws. Moderated by Jonathan Rauch, panelists included Angela Hawken, co-author of Marijuana Legalization: What Everyone Needs to Know (Oxford Univ Press, 2012); Troy Eid, former U.S. Attorney for Colorado (an opponent of Amendment 64); and Prof. Michael Greve, George Mason Univ. Law School.

A useful, thoughtful program.

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Fast moving developments: Feds responding to Washington and Colorado: Obama, Leahy, Holder. Where's Biden?

The stasis in Washington on marijuana policy is breaking because of the Washington and Colorado votes to legalize marijuana.
President Obama will be on Barbara Walters on ABC TV on Dec. 14 answering questions. Ethan Nadelmann very astutely interprets the President's words on Huffington Post.
Senate Judiciary Committee Chairman Pat Leahy (D-VT) has said he will hold hearings early next year on the federal response and on Dec. 6, 2012 wrote  this letter to Gil Kerlikowske, director of the White House Office on National Drug Control Policy to inquire about federal policy. Leahy notes that there are legislative options for Congress to resolve the apparent conflict between Washington and Colorado law and current federal law, such as legalizing possession of one ounce.
Attorney General Eric Holder said on Dec. 11 that a policy pronouncement will be announced "relatively soon" in answer to a question.

Ethan Nadelmann notes that Obama is at last taking the issue seriously after previously joking about it, when asked.
Second, Obama's comment that users are not a "top priority" for federal enforcement is not news and says nothing.
Third, and significantly, Obama said that he does not support widespread marijuana legalization "at this point." That's the language he used responding to questions about same-sex marriage, until he supported it.
Fourth, and most importantly, Obama said we "need to have a conversation," about marijuana legalization to "reconcile" federal and state law. This is not a statement that conveys an insistence on an inflexible application of federal supremacy to obstruct state law.
Of course, as Nadelmann asked, who is going to be part of this conversation? Is it simply an internal Department of Justice conversation? Will Members of Congress such as Chairman Leahy or U.S. Rep. Diana DeGette (D-CO), who introduced H.R. 6606? Will officials from Colorado and Washington and the public be included in this conversation?

Is the policy that Eric Holder may be announcing going to pre-empt the conversation, or will it be stalled until there is a conversation?

And what is the role of Vice President Joe Biden? He has had oversight of the crime and drugs portfolio inside the White House. Former ONDCP staffer Kevin Sabet told Rolling Stone,

"The vice president has a special interest in this issue...As long as he is vice president, we're very far off from legalization being a reality."

Taking Dr. Sabet seriously, a petition campaign on the White House petition site targeting Vice President Biden has been launched. As of this writing it had over 8,600 signatures -- 25,000 are needed to trigger a reply.

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Marijuana is legal in two states; Regulation writing commences

On Dec. 10, 2012, Colorado Governor John Hickenlooper signed Amendment 64 which was passed by 55.34 percent of Colorado voters on November 6, 2012. This act puts Amendment 64 into effect. It is legal to possess and use marijuana in Colorado privately, and to grow three mature marijuana plants and keep the harvest. One may also give away for no consideration up to one ounce of marijuana. Today the Governor appointed a task force to develop regulations to carry out the Amendment's provisions creating a legal industry to cultivate, process and sell marijuana under state law.

Previously, on Dec. 6, 2012, Washington Initiative 502 took effect, pursuant to its terms, having been passed by 55.7 percent of Washington voters. It is legal to possess and use up to one ounce of marijuana (and larger quantities of marijuana infused products), but not to grow it, buy it or sell it. According to the Secretary of State's website, in contested statewide races, marijuana got more votes than every other candidate, other than U.S. Senator Maria Cantwell. Every statewide office holder who won in a contest, from the Governor-elect, Jay Inslee on down, got fewer votes than legal marijuana and Initiative 502. Marijuana even got more votes than President Barack Obama and Vice President Joe Biden.

Marijuana legalization in Washington is under the jurisdiction of the Liquor Control Board.
On Dec. 5, 2012, the Liquor Control Board published a notice that it is seeking public comment to begin to develop rules to license producers of marijuana. They want written suggestions and comments by Feb. 10, 2013, by email, fax or mail.

By the way, outgoing Governor Christine Gregoire, in 2011, filed a petition with the Drug Enforcement Administration to reschedule marijuana for medical purposes.

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Washington and Colorado voters approve marijuana legalization

On Nov. 6, 2012, roughly 55 percent of voters in both Washington State and Colorado passed initiatives to legalize marijuana for social use. Washington's Initiative 502 is described here and Colorado's Amendment 64 here.



UPDATE (Nov 13, 2012): The Washington Post published my LTE urging the Justice Department to take a "wait and see" approach to the new laws.

UPDATE (Nov. 28, 2012): Washington’s measure (I-502) received 55.7 percent to 44.3 percent. Colorado’s measure (Amendment 64) passed 55.32% to 44.68%. These are overwhelming margins, and politicians know it! The combined votes in those two states resulted in more votes for marijuana than for Barack Obama! Oregon’s Measure 80 lost, but by a much smaller margin (46.89% to 53.11%) than pollsters predicted.

It will cease to be an offense in Washington to possess an ounce of marijuana or less after Dec. 6, 2012. Authorities in Washington will have a year to develop regulations for the production and sale of marijuana in licensed premises. The initiative does not provide for individual home cultivation, although the medical marijuana law does provide for patients to cultivate.
Here is a useful FAQ.

The Colorado law takes effect on the day that the vote is "proclaimed" by the Governor pursuant to the Colorado Constitution. Persons over 21 years of age may possess and use marijuana, and they may grow no more than 3 mature plants (6 plants total) and retain the harvest, but may not distribute it other than to give no more than one ounce to a person over 21 for no remuneration. By July 21, 2013, the state shall adopt regulations to govern the large scale cultivation, production and distribution of marijuana for remuneration. Local governments are authorized to write time, place, manner related regulations for marijuana distribution facilities.

Obviously there are a lot of local details to work out in each state.

On Nov. 7, 2012 the U.S. Department of Justice issued a statement that marijuana possession, cultivation and distribution still violated federal law and that law will be enforced. Clearly this is not the last word on the federal government's response.

Indeed, no one can predict exactly how the federal government will respond. While the legal route is probably clear, the politics are not. Legally, the state laws violate the Single Convention on Narcotics to which the U.S. is a signatory. Thus the U.S. has a treaty obligation to enjoin the states from carrying out their laws. However, there is no authority in the United Nations to force the U.S. to do this. While Article VI of the Constitution provides that treaties (like federal laws) are "supreme Law of the Land," we know that the Supreme Court has held Acts of Congress to be unconstitutional. The Supreme Court may be asked to weigh the powers reserved to the States under the 10th Amendment to the Constitution against the treaty obligations at some point. Of course, counsel in the Justice Department could conclude that the restrictions of the treaties intrude to far into our domestic law, and not defend the treaty against state claims, but that would be an unlikely outcome, both legally and politically.

I think it is probable that the federal government will bring suit to enjoin Washington and Colorado from carrying out the licensing provisions of their new laws, and I think it is likely that the lower federal courts will rule for the federal government. If legal cultivation and sales get underway in CO and WA, they will supply distributors throughout the nation because their costs are likely to undercut illegal growers elsewhere, and the price of marijuana across the nation will go down, perhaps quite dramatically. This is the prediction of Jonathan Caulkin, Mark Kleiman and Beu Kilmer, three of the co-authors of the excellent book, Marijuana Legalization: What Everyone Needs to Know, (Oxford Univ. Press, 2012).

Is there likely to be an increase in illegal marijuana cultivation in these states for distribution elsewhere in the U.S. by those hoping to escape state prosecution and anticipating that federal prosecution can't meet the extent of the law breaking?

Will either of these states start collecting sales tax, excise tax and other revenues? Not if the feds can block their programs, which gives the state authorities a powerful incentive to resist the federal suits.

A very important question is how the rest of the world will react. Mexico in particular may quickly conclude that they could reduce if not eliminate the bloody conflict among their criminal organizations and against the society if they were no longer being fueled to a significant degree by illegal marijuana sales, according to a Christian Science Monitor report. Alesandro Madrazo, a Mexico City law professor, predicted at a conference at The Brookings Institution on Oct. 3, 2012, that Mexico would fairly quickly legalize  marijuana in response to U.S. marijuana legalization.

UPDATE:

The Washington Post reports that  Luis Videgaray, the head of transition for the incoming President of Mexico, Enrique Pena Nieto, said “These important modifications change somewhat the rules of the game in the relationship with the United States.”  “I think that we have to carry out a review of our joint policies in regards to drug trafficking and security in general.

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International treaties vs. marijuana legalization

Alternet.org has a very thoughtful article by three members of the New York City Bar Association's Drugs and the Law Committee on the way international treaties impact efforts to legalize marijuana in the U.S.

The U.S. has signed the Single Convention on Narcotics (1961) and Article VI of the U.S. Constitution provides that federal law and treaties are the "supreme Law of the Land." The various states are governed by these treaties, and thus limit the ability of any state to legalize marijuana. This is certain to become an issue in the summer and fall of 2012 as the voters of Washington State, Colorado and Oregon consider initiatives to legalize marijuana. If one or more of these pass, these international treaties will be a factor in how the federal government responds.

The authors -- Heather J. Haase, Esq., Nicolas Eyle, and Joshua Schrimpf, Esq. -- note that the international consensus behind these treaties is being shaken.

A major change in the traditional protocol of the treaties -- don't rock the boat -- is coming from Bolivia. When Bolivia (and Peru) acceded to the Single Convention (what we in the U.S. call ratifying the treaty), they agreed to ban their long-time practices of coca chewing and drinking coca tea after 25 years (Article 49.2(e), Single Convention of Narcotics). Since 1987, they have not been in compliance.

A couple of years ago, Bolivia rewrote its constitution and decided to try to change the requirement that it disapprove of coca use. (Bolivia's President, Evo Morales, came to political prominence as the leader of the union of coca growers!).

Bolivia tried to get the U.N.'s Commission on Narcotics Drugs to change the prohibition on coca use, unsuccessfully.

Now Bolivia is using different approach which is to "withdraw" from the treaty (called "denunciation," Article 46, Single Convention on Narcotics) and then joining the treaty again ("accession," Article 40) but with reservations (Article 50.3). The reservation can be rejected if it is objected to by one-third of the countries that are party to the Single Convention within twelve months after a country notified the U.N. Secretary General it wants a reservation. That means that one-third of the 183 nations ("parties") have to object.


This type of strategy is outlined in chapter 6 in the excellent book by Robin Room, Benedict Fischer, Wayne Hall, Simon Lenton and Peter Reuter, Cannabis Policy: Moving Beyond Stalemate, (Oxford U. Press, 2010).

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TIME.com 10 Reasons to Legalize Marijuana

Maia Szalavitz at TIME.com spells out 10 reasons to "revisit" marijuana policy now.

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Calderon to U.S.: Legalize marijuana!

The Wall Street Journal reported on June 14, 2012 on an interview with its editorial board by Mexico's President Felipe Calderon:

A conservative, Mr. Calderón has also added his voice to a growing group of Latin American leaders who are calling for the U.S. to seriously consider legalizing some drugs like marijuana. Both the presidents of Guatemala and Colombia have made a similar plea.

"The U.S., and not just President [Barack] Obama, but its congress, its society, needs to look at alternatives that reduce the cash flow to these criminal groups," he said, adding that alternatives could include "market solutions" like legalization.

"Until that debate or analysis of alternatives happens, the path for many of our countries will continue to be one of sadness," he said.

Strikingly, his last statement -- that until the debate or analysis happens, "many of our countries will continue to be [in] sadness" -- supposes that the outcome of the debate is inevitable -- the adoption of a "market solutions," i.e., legalization. He seems to be conflating the debate or analysis with the result.

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New York Marijuana Business Conference, Oct. 25-26

A media company that hosts business conferences is holding a conference on the marijuana business in New York City, Oct. 25-26, 2010. Lots of top speakers!

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National Black Police Association endorses marijuana legalization

At their annual meeting in Sacramento, CA on Aug. 19, the National Black Police Association endorsed Proposition 19 and the legalization of marijuana.

This is particularly significant because these cops have historically had to struggle to be taken seriously by their peers in the station house. This action by an organization that represents tens of thousands of active duty police officers is an important step toward establishing marijuana legalization as a legitimate position in the law enforcement community.

LEAP's new Executive Director Neill Franklin, a former patrol officer in Baltimore, Maryland, played a key role in speaking to the NBPA membership.

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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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Fighting marijuana prohibition as a Christian imperative

James Clark argues very persuasively at Huffington Post that a Christian should be in the fight against marijuana prohibition.

The back story is that when the NAACP endorsed Proposition 19 on June 28, some African-American pastors attacked the NAACP state conference president. The pastors said nothing about the faith basis for their opposition.

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Happy Birthday President Obama -- What do you say now?

The Democratic Party is making a big deal about President Obama's 49th birthday tomorrow.
I posted this comment on FireDogLake.com on August 3.

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ABC News polling results on support for medical marijuana and legal personal use

ABC News just issued its ABC News/Washington Post polling results of Americans regarding medical use of marijuana, and legalization for "personal use." 81 percent support legal medical use, up from 69 percent 12 years ago.

46 percent of Americans support legalizing marijuana for personal use. It was 39 percent in 2002. 51 percent of persons under age 65 support this! Right now, only 30 percent of conservatives and 32 percent of Republicans support this, but 63 percent of Liberals and 53 percent of Democrats do.

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White House press briefing on marijuana legalization

The White House press corps gets after presidential spokesman Robert Gibbs about marijuana legalization.

Gibbs is utterly unprepared to discuss the issue intelligently. He alternates between making jokes and being dogmatic. He makes a poor impression.

It is painfully clear that as far as the crisis of violence in Mexico goes (or sending 17,000 more American service personnel to Afghanistan's opium poppy fields), the Obama press team has not thought about what the Administration is doing for the nation beyond the most painfully obvious jokes and cliches.

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