Californians will have an historic opportunity this November to vote on a landmark initiative to legalize adult use and sales of marijuana. Polls indicate a tight race, with Prop 19 leading in most of them, presenting the likelihood that California will actually become the first state to legalize.
Prop 19 is by no means a full legalization measure. Statewide, its major effect is to legalize private adult possession of one ounce for personal use and home cultivation of 25 square feet or less.
All other current state penalties against sale, distribution, transportation, possession for sale, manufacture or possession of larger amounts would remain in effect.
Importantly, however, Prop 19 also permits local cities and counties to legalize, tax and regulate all of these activities if they choose, thereby establishing a local option system for adult use sales. Based on experience with medical marijuana, it can be expected that only a handful of localities would choose to do so at first.
Still, the legalization of one ounce or less would go far to protect users, medical and otherwise, since the sight or smell of marijuana would no longer constitute “probable cause” for arrest (except in cases of public consumption, which aren’t protected by Prop 19). In addition, a clause forbidding discrimination against pot users where impairment isn’t an issue could go a long way towards protecting users against abusive urine tests.
Prop 19 is by no means a perfect measure. Many activists have criticized the provision disallowing public consumption, which would remain punishable as illegal possession. In addition, Prop 19 does not allow adults to smoke in the presence of kids and raises the penalty for adults giving away marijuana to 18-21 year-olds to a jailable misdemeanor. California NORML strongly opposes these provisions, and hopes they will be repealed.
Fortunately, though, unlike many initiatives, Prop 19 specifically authorizes the legislature to pass further legislation advancing the purposes of legalization. Such a bill has already been introduced by Assemblyman Tom Ammiano (ABX6 9).
The bill remedies major defects in Prop 19, establishing a statewide regulatory system for commercial marijuana, abolishing felony penalties except in cases of export to other states, raising the possession limit to 16 ounces, and eliminating the restriction against smoking in the presence of kids. If Prop 19 passes, the legislature will likely be eager to enact statewide regulations to iron out the chaos of conflicting local rules. As the chief legislative advocate of legalization, Ammiano should have the inside track with his proposed bill.
Nonetheless, many well-intentioned supporters of legalization are leery or even hostile to Prop. 19. Some argue that it doesn’t go far enough; to be sure, it’s only a partial step. Others worry that the “tax and regulate” scheme will put the market in the hands of large-scale corporate producers.
This trend has already started in the medical market, as seen in recent city ordinances to license large-scale medical grows in Oakland, Long Beach and elsewhere. So long as marijuana remains illegal federally, however, there is no chance that national corporations will move into California. Meanwhile, we need to work towards politicies that legalize on a human, not a corporate scale.
Above all, many medical marijuana advocates are opposing Prop 19 out of fears that it could wipe out patients’ rights under Prop 215. By and large, these fears are unwarranted. Contrary to myth, Prop 19 explicitly protects the right of patients to possess and grow as much as they need for their own medical use in accordance with Prop 215 and SB 420.
The one area where Prop 19 could possibly impact current law is in strengthening the hands of local cities and counties to restrict and/or ban sales and cultivation. At present, many collectives and providers are arguing in court that local communities are obliged to let them operate on account of SB 420 and Prop 215. It is unclear how courts will decide on this issue, but it is conceivable that Prop 19 could strengthen local governments’ authority to do as they please when it comes to regulating, taxing or banning collectives.
However, it is important to understand that the legality of patient collectives currently rests on the slender authority of SB 420, not Prop 215. The legislature can alter SB 420 anytime it wishes. There are already indications that it is likely to move in that direction regardless of Prop. 19. The current session saw bills to tax and regulate medical marijuana collectives, and more are likely to come next year.
One thing is sure: the better Prop 19 does at the polls, the more the legislature will be supportive of marijuana, medical or otherwise – and conversely. However much our small band of legalizers quibble about its pros and cons, the broader public will rightly interpret Prop 19 as a vote on whether marijuana should be legal.
The higher the vote for Prop 19 on November 2nd, the stronger the message for reform. For that reason, California NORML strongly urges a “yes” vote on Prop 19.
Win or lose, Prop 19 will not be the end of the fight. The feds will no doubt take legal action against Prop 19, just as they did against Prop 215. In the meantime, the illegal market will not disappear overnight.
Marijuana will be legal only when federal law is changed. So long as pot remains illegal in 49 other states, not to mention the many California cities and towns that may not choose to legalize, we will continue to be plagued by pirate gardens in the national forests, illegal grow houses, CAMP overflights, Mexican gangs and smugglers, and other evils of prohibition.
True legalization will take years, even decades. But a journey of 1,000 miles begins with the first step: it’s time to begin with Prop 19.