Monday, July 19, 2010

Yes, Professor Kleiman, California Can End Cannabis Prohibition

A couple weeks ago, I talked a little about why it's important to pass this ballot initiative even if it doesn't affect federal law.  Recently, an opinion piece by UCLA professor of public policy Mark A.R. Kleiman appeared in the Los Angeles Times with the rather presumptuous headline, "California can't legalize marijuana." I've seen this article get a lot of attention, and some Prop 19 supporters start to look worried.  I'd like to try to set your minds at ease.

Is going against federal law even legal?

First, let's look at the legality of a state unilaterally ending prohibition.  In the 2003 case of People v. Tilehkooh (a medical marijuana case), the California Third District Court of Appeals found that "The People have misunderstood the role that the federal law plays in the state system. The California courts long ago recognized that state courts do not enforce the federal criminal statutes."  The Tilehkooh court in turn cited the 1869 case of People v. Kelly: "The State tribunals have no power to punish crimes against the laws of the United States, as such. The same act may, in some instances, be an offense against the laws of both, and it is only as an offense against the State laws that it can be punished by the State, in any event."  From the Americans for Safe Access website: 2006, California Attorney General Bill Lockyer provided clarification on the role and responsibility of the state in upholding medical marijuana law. In a case where ASA is assisting a patient in seeking the return of his unlawfully seized medicine (Case #A108328), a Superior Court ruled against the patient, claiming that, "[medical marijuana cultivation is] still illegal under federal law." On appeal, Lockyer dismissed the entire federal law argument by stating that, "the continuing prohibition of marijuana possession under federal law" does not come into play. Instead, Lockyer "acknowledges that - both generally and in the specific context of interpreting the Compassionate Use Act - it is not the province of state courts to enforce federal laws."
In other words, there is substantial precedent for California to shrug at the federal government with regards to cannabis prohibition and tell them, in so many words, "Hey, that's your problem."

So won't the feds just sweep in and break up the party?

So the federal government can't force the states to enforce their drug laws.  So what?  Doesn't the federal government have the DEA for that?  We read stories every week or so about the feds raiding this collective or that grower.  Won't they just step up their busts until half the state is in jail?

I'm sure they'd love to.  But the embarrassing fact of the matter is, the federal government's ego is writing checks its budget can't cash.  In 2008, there were over 847,000 cannabis-related arrests, but only 6,300 of the suspects were booked by the feds.  That means 99% of these arrests are by state officials, not feds.  If you read those articles about those local busts, you'll see they're carried out with the assistance of local and state police, sheriffs, and SWAT.  All but the biggest busts were prosecuted on a state level.  In fact, it's well known in California that the DEA doesn't even usually bother with you (busting you or pressing federal charges) unless you are growing over 100 plants, or are known to possess over 100 kilograms of cannabis.  Why?  Because those are the thresholds for Congress's mandatory minimum sentence of five years.

So this idea that the DEA is going to conduct door-to-door inspections and arrest everyone with a private cannabis garden is ludicrous.  Even the local police don't have that kind of manpower, and the DEA has to enforce the drug laws (all of them, not just cannabis) all over the country.  They will make "examples" out of the largest commercial growers instead.  Which brings me to...

But if there are no big growers, where is all this magic tax windfall coming from?

Well, first of all, taxing and licensing growers is just one potential source of revenue from Prop 19.  There is money to be made all the way down the supply line, from growing to selling.  Right now, the California Board of Equalization (who oversees controlled substance taxation) estimates that it currently collects $50-$100 million per year in sales tax on medical cannabis.  Kleiman's argument seems to rest on his belief that California recreational growers and sellers, by paying their taxes, would in effect "be confessing, in writing, to multiple federal crimes."  He concludes, "And that won't happen."-- seemingly ignoring that it is already happening to the tune of $50-$100 million a year or more.  And, should this pass, do you think cash-strapped, budget-broken California is going to give up the potential millions or even billions in revenue to help the feds perpetuate their doomed prohibition efforts?

Kleiman starts to contradict himself in the second-to-last paragraph.  He says "Legalizing cannabis isn't a terrible idea, but I'd very much prefer to do it on a non-commercial (grow-your-own or consumers' co-op) basis rather than creating a multibillion-dollar industry full of profit-driven firms."  How would this approach succeed any better against his earlier arguments?  Is he arguing against Proposition 19 because he doesn't think it's feasible, or because he doesn't agree with its implementation?  In fact, the only thing that Proposition 19 guarantees upon passage is just that-- the individual right to possess, consume, and grow your own.  Individual jurisdictions have to pass laws and set up regulatory systems to allow commercial cannabis, if they want.  Will there be big growers eventually, who make lots of money?  Sure.  In a capitalist system, after all, profit is the great motivator.  He suggests that such a profit-driven system will create "not casual, moderate recreational users but chronic, multiple-joints-per-day zonkers."  There is absolutely no evidence to support this.  There is some speculation that the price may drop, causing usage to increase, but, as I have pointed out before, such conjecture is pure speculation.  Alcohol is cheap and freely available, yet the vast majority of people do not walk around drunk all the time.  There is no reason to think cannabis usage will be any different.

California has a solid history of defending their legally adopted ballot initiatives, for better or worse.  Without state cooperation, which they cannot legally compel, the federal government will be hard-pressed to enforce their laws in California on any widespread basis.  And California has every motivation to fight the feds tooth and nail to see they get their share of the promised tax cash cow from this initiative.  With or without federal cooperation, California is very much able to end cannabis prohibition.


  1. For more analysis of Mark Kleiman's opinion piece, please see Pete Guither's excellent "Why Mark Kleiman is a crock" at his blog DrugWarRant.

  2. Enforcement of Federal laws in contravention to California's laws is specifically prohibited in the California State Constitution unless a court of appeals has held the California law illegal.

  3. Could you cite which part? The California Constitution is one of the longest in the world and I admit I am not fully conversant with its entirety.

  4. I don't think Kleiman was implying that California would be compelled to enforce Federal law, but that California could not procedurally enact legislation that legalized federally illegal activity. I think Prop 215 disproves that, despite some rumbling on his part about legislating the practice of medicine being specifically the purview of the states.

  5. While I agree with most of your points, P19 will certainly increase availability, hence lowering cost and increasing usage (prevalence at least). The evidence that "profit-driven system will create 'not casual, moderate recreational users but chronic, multiple-joints-per-day zonkers'" lies in "Paying the Tab" (which I've yet to read). Apparently the alcohol industry is sustained by a small number of folks who drink way too much.

    So prop 19 has pros and cons...I think the pros are well worth it.

  6. I have heard a lot of opposition (or even proponents simply worrying) say that passing Prop 19 is pointless because the federal government will come in and challenge the law based on a conflict with federal law. If the state law was in direct conflict of the federal law, this would be true. And some people seem to think that because Prop 19 would legalize something that is illegal federally, it is in direct conflict with federal law.

    Direct conflict, however, is something very different. Laws are in direct conflict when, no matter what you do, you cannot possibly be in compliance with both laws. IE: California law says you MUST always stand on your head but federal law says you MUST NEVER stand on your head. In order to comply with one, you will have to break the other. Prop 19 is only half that equation, since there is a situation in which you could be in compliance with both laws - not smoking or growing cannabis. Even though the other option (being legal under CA law but illegal under federal law) seems like it is conflicting, it is not. California does not have to punish everything the federal government does simply because they are.

    @ Erika: I think Kleinman misplaces the confessions into the tax issue. As you point out, people are already paying plenty of taxes on medical marijuana. Being a licensed large scale commercial grower is more likely to get you DEA attention than paying taxes. Because, as you point out, the DEA is looking for the bigger fish. And being a commercial grower that is licensed to grow thousands of plants would be the only place that would cause concern. But even then, the DEA has been less than 50-50 about arresting those that have been open about being larger scale growers.

    Also, have you looked into HR 2943? It would certainly help in the federal versus state law battle, if it could get the support it needs in the house.