CA Could Be First State to Legalize Marijuana Possession

By Jeralyn, Section Crime Policy
Posted on Thu Oct 08, 2009 at 11:30:00 AM EST
Tags: marijuana reform (all tags)

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Signatures are being gathered in California for three 2010 ballot initiatives to legalize adult marijuana possession for personal use by adults.

If any of them pass, California would be the first state in the nation to legalize possession of marijuana. While it would still be illegal under federal law, it might not matter in practice:

Such action would also send the state into a headlong conflict with the U.S. government while raising questions about how federal law enforcement could enforce its drug laws in the face of a massive government-sanctioned pot industry.

....some legal scholars and policy analysts say the government will not be able to require California to help in enforcing the federal marijuana ban if the state legalizes the drug. Without assistance from the state's legions of narcotics officers, they say, federal agents could do little to curb marijuana in California.

[More...]

While local law enforcement can't ban the DEA from making personal possession busts:

'T]he U.S. government cannot pass a law requiring local and state police, sheriff's departments or state narcotics enforcers to help....That is significant, because nearly all arrests for marijuana crimes are made at the state level.

DOJ does not bring possession of pot cases in federal court if the quantities are small. They would overwhelm the federal docket and simple possession is seen as a state and local issue.

Of more than 847,000 marijuana-related arrests in 2008, for example, just over 6,300 suspects were booked by federal law enforcement, or fewer than 1 percent.

About the three proposals:

The most conservative of the three ballot measures would only legalize possession of up to one ounce of pot for personal use by adults 21 and older — an amount that already under state law can only result at most in a $100 fine.

The problem is not the fine, it's that in many jurisdictions, it's also a petty offense and causes one to have a criminal record.

I wonder how many reform advocates will move to California in time to gain residency and vote on the measures?

How would the Obama Administration react? So far, with a wishy-washy statement:

Doug Richardson, a spokesman for the White House's Office of National Drug Control Policy, said the office is in the process of re-evaluating its policies on marijuana and other drugs.

Richardson said the office under Obama was pursuing a "more comprehensive" approach than the previous administration, with emphasis on prevention and treatment as well as law enforcement. "We're trying to base stuff on the facts, the evidence and the science," he said, "not some particular prejudice somebody brings to the table."

What does that mean? Your guess is as good as mine.

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CA Could Be First State to Legalize Marijuana Possession | 29 comments (29 topical)

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Legalise it (5.00 / 1) (#6)
by Illiope on Thu Oct 08, 2009 at 11:35:59 AM EST

don't criticize it

Why quote it... (none / 0) (#7)
by kdog on Thu Oct 08, 2009 at 11:41:50 AM EST

when you can link it!...:)

Other scholars agree.

[ Parent ]

: the tall guy from kingston (none / 0) (#11)
by Illiope on Thu Oct 08, 2009 at 11:48:35 AM EST

love tosh

[ Parent ]

a win-win (5.00 / 1) (#10)
by Illiope on Thu Oct 08, 2009 at 11:45:55 AM EST

i know i'm biased, but the legalization and taxation of pot would be one of the smartest economic/social moves the govt could currently make. from increased tax revenue, to decreased incarceration of non-violent drug offenders, to the kneecapping of the prison-industrial complex, to the reduction in the drug enforcement budget, to the decrease in the amount shattered families, to reducing illegal drug dealers business, to a less stressful society, etc.

i have yet to hear a convincing argument for the continued criminalization of pot. not one.

: Agree completely (none / 0) (#20)
by otherlisa on Thu Oct 08, 2009 at 03:51:59 PM EST

We already have an absurd situation here with medical marijuana clinics, some of which are so dubious that even a strong legalization advocate like myself just has to shake her head - here in Venice, we have "Dr. Kush's Clinic" - and my absolute favorite, the one on the Venice boardwalk where you can "get legal marijuana!" and "Botox!"
But yeah. Tax revenue, and even more importantly taking all of that expense out of the enforcement/legal system would be huge. And I hope also that legalization would remove some of the incentives for large-scale drug operations in our national forests, which are toxic and dangerous on so many levels.
I think this would be really good for the state - and we could use some good news right now.

[ Parent ]

i will be surprised (5.00 / 1) (#15)
by Turkana on Thu Oct 08, 2009 at 01:15:08 PM EST

if any of them pass. among those who will oppose the measures will be the many people whose incomes depend on it remaining illegal.

: Ha. Will CCPOA campaign against (5.00 / 1) (#22)
by oculus on Thu Oct 08, 2009 at 04:26:08 PM EST

these ballot proposals?
I was thinking this might be the best ballot to try and make same sex marriage legal again in CA.

[ Parent ]
: From the Emerald Triangle (5.00 / 1) (#27)
by kaleidescope on Thu Oct 08, 2009 at 05:23:42 PM EST

The economy of the Emerald Triangle -- Humboldt, Trinity and Mendocino Counties -- depends on marijuana production. Lately the price local growers have been getting has fallen from around $4,000 a pound to around $2,000 a pound (wholesale). And, of course, the price of pot depends on it being illegal.
Still, measures legalizing possession will pass overwhelmingly here. For large segments of the community, marijuana is a kind of religion. The activist who spearheaded passage of Proposition 215 came from Honeydew. Locally, April 20 is a bigger holiday than Memorial Day.
Growing and selling pot commercially will remain illegal. And even possession will remain illegal everywhere else. Making simple possession legal under California law may, in fact, stimulate demand for pot in California.
So I don't expect our local agriculturalists to oppose any of the California measures that would abolish California laws that forbid adults from possessing and using weed.

[ Parent ]

Oaksterdam (none / 0) (#1)
by kaleidescope on Thu Oct 08, 2009 at 11:22:30 AM EST

In Oakland, the downtown neighborhood along Broadway south of the Fox Theater is now called "Oaksterdam".

Seriously, this could make a difference for young adults, since Federal law forbids federal student aid from going to anyone convicted of a drug crime.

Here's to legions of narcotics agents being laid off.

Gonzales v. Raich (none / 0) (#2)
by Big Tent Democrat on Thu Oct 08, 2009 at 11:26:10 AM EST

has decided this issue.

California can not legalize marijuana use under that case.

"For the purposes of consolidating various drug laws into a comprehensive statute, providing meaningful regulation over legitimate sources of drugs to prevent diversion into illegal channels, and strengthening law enforcement tools against international and interstate drug trafficking, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II of which is the CSA. To effectuate the statutory goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except as authorized by the CSA. 21 U.S.C. § 841(a)(1), 844(a). All controlled substances are classified into five schedules, §812, based on their accepted medical uses, their potential for abuse, and their psychological and physical effects on the body, §§811, 812. Marijuana is classified as a Schedule I substance, §812(c), based on its high potential for abuse, no accepted medical use, and no accepted safety for use in medically supervised treatment, §812(b)(1). This classification renders the manufacture, distribution, or possession of marijuana a criminal offense. §§841(a)(1), 844(a)."

states rights (none / 0) (#4)
by Capt Howdy on Thu Oct 08, 2009 at 11:33:54 AM EST

I wanna see that fight.

[ Parent ]

You're only half-right on that, BTD (none / 0) (#8)
by scribe on Thu Oct 08, 2009 at 11:42:39 AM EST

Under Gonzales v. Raich, California cannot make MJ wholly un-criminal. There is a level of federal criminalization which will exist so long as the federal statute criminalizing MJ continues to exist.

What California can do is three-fold:

They can say that MJ is not criminal under state law.
They can deny federal agents the status (and accompanying authority) as peace officers to effect arrests for state law violations in California.
They can decline to allow state and local law enforcement to participate in or assist federal law enforcement in the execution of federal law enforcement operations.

As to 1. and 2., those are matters that would be fixed through state-law, statutory revisions. See my comment downthread on the peace officer statute.

As to 3., that would be a policy decision which could be implemented immediately. As a policy decision, it would be better (to make it a permanent change) to revise the state statutes governing state and local law enforcement.

OTOH, the feds could write in a provision to budgetary matters which would deprive federal funding - like the 21 y/o drinking age and the .08 DWI statutes. Those are not required by, nor are they requireable by, federal law. They are state laws. But the federal law deprives federal funds from any state which does not have them on the books.

[ Parent ]

That makes sense (none / 0) (#9)
by Big Tent Democrat on Thu Oct 08, 2009 at 11:43:55 AM EST

Is that the proposal?

That seems different than Jeralyn's title to me.

More like "CA Will No Longer Cooperate With Feds on Marijuana Arrests"

[ Parent ]

: I think the proposal would be (none / 0) (#12)
by scribe on Thu Oct 08, 2009 at 12:02:07 PM EST

#1 on the list of 3 I put up above. I would believe that #2 would follow as an "administrative" matter, i.e., something the legislature would pass perfunctorily on a voice vote or as a part of larger legislation, as being necessary to put #1 into effect.
Likewise, #3 would be a policy issue - which every local policymaker with a police force could have the power to go along with, or not. That would obtain until such time as the legislature passed a bill putting that policy change into effect.
Again, it all depends on the specific structure of California's statutory law, and that is something I would happily defer to a California lawyer on. I'm showing a statute from another state, to show the framework of what would have to be done.

[ Parent ]

If the federal government wants local (none / 0) (#21)
by oculus on Thu Oct 08, 2009 at 04:24:08 PM EST

law enforcement assistance, they will get if if funding for local enforcement is tied to cooperation.

Jeralyn, currentlly possession of statutory max mj is an infraction in CA, not a misdem.

[ Parent ]

If the state... (none / 0) (#3)
by kdog on Thu Oct 08, 2009 at 11:28:04 AM EST

can make it happen it'll be like the second coming of the gold rush...1849 all over again.

The state could sure use the action.

As to the issue of federal-state law enforcement (none / 0) (#5)
by scribe on Thu Oct 08, 2009 at 11:34:51 AM EST

and cooperation, my research (i.e., reading law books for lack of anything better to do - I need a life) tells me the answer is there. If you delve deeply into each state's statute books, you will find a provision which gives federal law officers the authority to operate as peace officers in the state. So, for example, in one state (not California) the statute reads:

The following persons employed as full-time law enforcement officers by the Federal Government, who are empowered to effect an arrest with or without warrant for violations of the United States Code and who are authorized to carry firearms in the performance of their duties, shall be empowered to act as an officer for the arrest of offenders against the laws of this State where the person reasonably believes that a crime of the first, second or third degree is or is about to be committed or attempted in his presence:
Federal Bureau of Investigation special agents;
United States Secret Service special agents;
Immigration and Naturalization Service special agents, investigators and patrol officers;
United States Marshal Service deputies;
Drug Enforcement Administration special agents;
United States Postal inspectors;
United States Postal police officers while in the performance of their official duties;
United States Customs Service special agents, inspectors and patrol officers;
United States General Services Administration special agents;
United States Department of Agriculture special agents;
Bureau of Alcohol, Tobacco and Firearms special agents;
Internal Revenue Service special agents and inspectors;
Department of the Interior special agents, investigators, and park rangers;
Federal Reserve law enforcement officers while in the performance of their official duties; and
United States Department of Defense police officers.

This, because without the state granting statutory authority to arrest, the person would be acting ultra vires in enforcing state law (as opposed to federal law). It's an issue of deep federalism, and its buried in the back of the statute books were no one goes too often because the issues addressed by those statutes are uncontested. (NB - in that state, a 1st, 2d or 3d degree crime is relatively serious - not a petty offense.)

One would have to see whether California has a similar statute or not. They are all pretty unique on a state by state basis, so I would not presume Cali's bears more than a superficial similarity to the one I quote.

: Interesting article earlier (none / 0) (#19)
by Inspector Gadget on Thu Oct 08, 2009 at 03:32:42 PM EST

this week on CBS telling how the "mom and pop" growing operations are cutting into the imported product. Raised my eyebrows, for sure.

[ Parent ]

Works for me (none / 0) (#13)
by beefeater on Thu Oct 08, 2009 at 12:28:17 PM EST

Takes a democrat party issue off the table (h/t Pelosi)and keeps the stoners home on election day. Win/Win.

I see the headlines now (none / 0) (#14)
by BobTinKY on Thu Oct 08, 2009 at 12:59:45 PM EST

Boomers rush to retire in California restarts stalled housing market.

here was my email to CNNMoney.com on 10/6/2009 (none / 0) (#16)
by kindGSL on Thu Oct 08, 2009 at 01:40:52 PM EST

Pot has to be regulated at the state level as a medicine because the federal regulation of our sacrament is unconstitutional religious discrimination.

As more and more people realize what I am saying is true, they decide state regulations are a good idea.

Rev. Lauren Unruh
THC Ministry
Pleasant Hill, Ca

Confuse a cop. (none / 0) (#17)
by MileHi Hawkeye on Thu Oct 08, 2009 at 01:48:16 PM EST

Deputies with the Park County Sheriff's Office searched 4 homes for marijuana in the Warm Springs and Foxtail Pines Subdivisions near Fairplay on Monday.

All four of the homes were targeted in a marijuana growing sting, but only one of the homeowners was arrested after a search of the homes.

Most of the pot turned out to be medical marijuana, and because of the state's hazy pot laws, most of it was left behind in the grower's homes. One resident did not have any medical marijuana documentation and he faces a felony charge.

...cont'd (none / 0) (#18)
by MileHi Hawkeye on Thu Oct 08, 2009 at 01:50:49 PM EST

As for the other homes, police say they had documentation under the state's medical marijuana laws to grow pot. Thus, officers left some 900 plants behind. Sheriff Wegener said current state laws leave a lot of grey area and few bright lines.
"Unfortunately that's one of the big problems right now, there's so much out there that is an unknown, on these quote medical marijuana grows, that we don't have a lot of clear cut guidance right now."


[ Parent ]

900 plants=personal use? (none / 0) (#23)
by oculus on Thu Oct 08, 2009 at 04:27:22 PM EST

[ Parent ]

In CA can you legally grow and then sell to (none / 0) (#25)
by sarcastic unnamed one on Thu Oct 08, 2009 at 04:36:57 PM EST

legal CA med pot facilites?

[ Parent ]

: Not sure. Seems to vary county by county. (none / 0) (#26)
by oculus on Thu Oct 08, 2009 at 05:11:44 PM EST

[ Parent ]
: In CA, you can grow (none / 0) (#29)
by Chuck0 on Fri Oct 09, 2009 at 11:20:26 AM EST

for other people. You have to have a copy of their medical MJ prescription on file. You can grow (I think) six plants for each prescription you have on file. I have friends who grow (really good stuff) in N. CA.

[ Parent ]

Prevention and treatment. (none / 0) (#24)
by lentinel on Thu Oct 08, 2009 at 04:35:23 PM EST

Smoking pot - big evil.
Prevent.
Treat.

Two olives, please.

it means (none / 0) (#28)
by cpinva on Fri Oct 09, 2009 at 02:55:14 AM EST

What does that mean?

whatever you want, or nothing at all.

the kind of statement that provides plausible deniability to the administration, regardless of what happens.