California to Cast Crucial Vote on Prop. 64 for Adult Marijuana Legalization

Californians will join the voters of Arizona, Nevada, Maine and Massachusetts in voting on an initiative to legalize adult use of marijuana on November 8th. California’s Proposition 64, the Adult Use of Marijuana Act (AUMA), would let adults use and buy marijuana legally in the nation’s largest state. Although Prop 64 has drawbacks and isn’t all it should be from a consumer perspective, on balance it offers signficant improvements over California’s current laws and would be a powerful boost for cannabis reform nationwide.

Like previous initiatives in Colorado and other states, Prop. 64 would legalize the possession and use of one ounce or less of marijuana by adults 21 and over, ending the state’s 103-year-old prohibition law. It would also let adults cultivate up to six plants for personal use in a private, enclosed space. (This limit doesn’t apply to medical users, who could still grow and possess as much as required for personal medical use under Prop. 215, though this remains subject to limitation by local nuisance ordinances.) Prop. 64 also forbids local governments from completely banning personal-use indoor cultivation, something that courts have allowed them to do under current law.

Importantly, Prop. 64 would downgrade the penalties for cultivation, sale, transport, and possession with intent to sell from mandatory felonies to misdemeanors, eliminating the number-one cause of felony pot arrests in California. Although felony enhancements are still allowed for third-time offenses and violent or aggravating circumstances, in no case does Prop. 64 increase existing criminal penalties. It also completely eliminates jail or prison sentences for minors under 18. Also importantly, Prop. 64 allows prior offenders, prisoners and parolees to petition the court for automatic dismissal of charges or resentencing.

Contrary to rumor, Prop. 64 would in no way override, repeal, or detract from the existing Prop. 215 rights of qualified patients to possess and cultivate for personal use, nor would it change how doctors recommend it. However, it should be noted that Prop. 215 does NOT explicitly protect the right to smoke or consume in public, nor rights to employment, housing, or freedom from discrimination, nor does it require local governments to allow delivery or sales of medicine—unfortunately, neither does Prop. 64. However, Prop. 64 does include a provision protecting medical users from CPS (Child Protective Services) charges.

On the minus side, consumers should beware that Prop. 64 establishes a new $100 fine for consuming marijuana in any “public place”—even tobacco-smoking areas—so that it will no longer be legal for Prop. 215 patients to smoke or vape their medicine in the streets. Furthermore, Prop. 64 prohibits the use or possession of an “open container” of marijuana in motor vehicles, even by back-seat passengers. Inexcusably, Prop. 64 also prohibits vaporization in all non-smoking areas, despite compelling evidence that second-hand cannabis vapor poses no public health hazard. Fortunately, though, unlike similar legalization initiatives in Colorado and elsewhere, Prop. 64 does allow for on-site consumption in specifically licensed establishments.

Prop. 64 would regulate the manufacture, cultivation, distribution and sale of cannabis along similar lines as the state’s new Medical Cannabis Regulation and Safety Act (MCRSA). Small growers and collectives have understandably voiced concerns that this will encourage large corporate grows to take over the market. One of the more controversial provisions in Prop. 64 would allow licensed cultivation areas larger than MCRSA’s current limit of one acre outdoors or 1/2 acre indoors, beginning in 2023. On the other hand, Prop. 64 would eliminate MCRSA’s unpopular requirement for independent distributors, eliminate MCRSA’s ban on licensing of persons with prior marijuana and drug felonies, and require licensees to have been continuous California residents as of January 2015 (a provision that expires in 2019). While patient advocates remain concerned that non-profit collectives will no longer be protected by SB 420 after state licensing takes effect, this is a result of MCRSA, not Prop. 64. The trend towards greater involvement by big business is an inevitable result of the state’s commitment to mandatory licensing under MCRSA and will no doubt persist regardless of Prop. 64’s outcome.

A serious concern about Prop. 64 is that it would impose substantial new taxes on marijuana. These include a $9.25 per ounce wholesale cultivation tax (about 10% of current prices) and a hefty 15% retail excise tax, plus the existing 7.5+% sales tax. In addition, local governments could still impose unlimited taxes of their own, some of which already range as high as 10%. An obvious concern is that overly high taxes will encourage unlicensed black market providers to undercut the legal market. Although Prop. 64 exempts medical users who obtain a voluntary state ID card from the 7.5% sales tax, they would still face a net 17.5% state tax increase under AUMA, posing undue financial burdens on needy patients. In the longer term, though, the cost of marijuana is certain to decline substantially under legalization, with prices 50%–75% below current levels entirely realistic, according to industry experts.

Tax revenues from Prop. 64 are expected to amount to some $1 billion annually and would be allocated to drug abuse education, treatment and prevention programs, environmental restoration, research, and grants to local governments and law enforcement in jurisdictions that do not ban marijuana sales or personal outdoor cultivation.

Prop. 64 enjoys a comfortable lead in the polls (60% in recent PPIC and LA Times polls). Proponents also have a big advantage in fundraising, having raised over $12 million from major donors led by internet billionaire Sean Parker along with Weedmaps, New Approach PAC, Drug Policy Action and others. Prop. 64 has an impressive list of endorsements, including Lt. Gov. Gavin Newsom, the LA Times, San Francisco Chronicle, the California Democratic Party, the California Medical Association, NAACP, and all national drug reform organizations. The primary opposition comes from the usual gaggle of prohibitionists led by SAM (Smart Approaches to Marijuana), Sen. Dianne Feinstein, and law enforcement groups with a vested interested in prohibition.

Opponents’ leading objection to Prop. 64 is that it doesn’t create a new legal standard for marijuana DUI like the .08% blood limit for alcohol, but instead keeps California’s current drug DUI laws in place. This ignores the facts that per se DUI standards have proven to be scientifically impossible for cannabis, that they don’t exist for other legal drugs such as prescription opiates or tranquilizers, and that cannabis is nowhere near as dangerous a driving hazard as alcohol. In any case, Prop. 64 helpfully allocates over $10 million for research and detection of impaired driving.

A different line of opposition to Prop. 64 comes from a minority of cannabis devotees, libertarians, small growers and patient advocates who dislike the initiative’s innumerable regulations and prefer a more open-ended approach such as the “tomato model” with unlimited personal-use growing. However attractive such visions may be, they are not politically feasible in a state where 85% of the voters are not cannabis consumers.

Prop. 64 isn’t the final word in marijuana or drug reform; many further improvements will be called for. Fortunately, most provisions in Prop. 64 can be modified by a simple majority of the legislature. Cal NORML has been working with other reform organizations on a list of proposed legislative fixes for next year and beyond.

Observers agree that a victory for legalization in California would be a powerful boost for marijuana reform both nationally and internationally. In contrast, a defeat would undoubtedly be interpreted as a major setback to legalization and likely invite a crackdown.

If Prop. 64 passes, it will take effect at midnight Election Night. At that point, Californians over age 21 will be free to possess, grow and use marijuana in private. Adult use sales won’t begin until Jan. 1, 2018, and only then in localities that permit them. In the meantime, marijuana will be available for sale only to qualified Prop. 215 patients via medical dispensaries. Feel free to light up in celebration if Prop. 64 passes—just remember not to do so in public.

Excerpted from Cal NORML’s October 2016 newsletter. Join Cal NORML, support our work and receive our newsletter.

See Cal NORML’s detailed analysis of Prop. 64.

Also see the Drug Policy Forum of California voter’s guide.

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