Dude, It’s Prop 19, Man…

Terry Hamburg at Technorati:

On November 2, 2010, the most populous U.S. state may make possession of one ounce of marijuana legal.

Some in government, like the progressive and cash-strapped Oakland City Council, see the passage of The California Marijuana Initiative as a billion dollar tax windfall, plus a jobs creation bill. Three members of Congress from the Bay Area enthusiastically endorse it: Reps. George Miller, Barbara Lee and Pete Stark. Law enforcement is divided: some rank and file are quietly in favor while most brass officially stand shoulder to shoulder against. The California NAACP supports the proposal as a civil rights issue because blacks are disproportionately arrested for possession.

Despite state inmates being released by court orders for overcrowding, the prison industry appears to reject anything that might reduce its clientele. Major opposition and probably funding is coming from illicit pot farmers, who fear a drop in demand and prices for their harvests. According to some reports, the liquor industry is discretely funneling money to groups pushing for a “no” vote.

R. M. Schneiderman at Newsweek:

So far, no modern country has ever legalized marijuana production—not even the Netherlands. Yet with heavy drug-related violence plaguing the U.S.-Mexican border, some analysts and policymakers now say that America should legalize weed in order to reduce the power of Mexico’s drug cartels.

Marijuana carries the least amount of overhead cost for many of the cartels and provides some of their cash flow for buying guns and influence. Estimates vary, but analysts say pot accounts for somewhere in the range of 20 to 50 percent of the cartels’ profits. But that could soon change with competition from El Norte: California has a proposition set for the November ballot—on which voters are roughly split—that would legalize the drug’s domestic production and sale. If the measure passes, says a recent analysis by the RAND Corporation, California could become a major supplier of the drug to the rest of the U.S. That, according to George W. Grayson, a professor of government at William & Mary, “would hurt the cartels badly.” RAND estimates that it could reduce the drug’s pretax price by more than 80 percent.

David Hirschman at Big Think:

Big Think spoke with Columbia University psychology professor Carl Hart who said he wasn’t particularly impressed with the California proposals, noting that similar movements had failed in the past. While he liked the idea of raising tax revenue from pot, he said that decriminalizing just marijuana would risk not addressing similar issues with other drugs.

“I don’t like the idea of separating marijuana from other drugs,” said Hart. “There’s a movement in the country to say marijuana isn’t like cocaine, isn’t like meth, isn’t like heroin.” He said that these distinctions don’t take enough into account, and that the trouble with addiction to any of these drugs is less about their pharmacological effects, and more about the social conditions under which they are consumed.

Hart suggested the U.S. should follow the lead of Portugal, which has effectively decriminalized all drugs, allowing users to face non-criminal administrative proceedings when they are caught rather than criminal charges. “It provides less of a taxing on our criminal justice resources, and allows young people to make mistakes without having a criminal record that follows them for the rest of their lives,” said Hart.

Another Big Think interviewee, former High Times magazine editor John Buffalo Mailer, told us today that he would be surprised to see the legalization efforts go through: “Given the environmental and economic benefits of hemp, not to mention the medicinal and economic value of marijuana, it seems insane to me that we still have the draconian laws in place we do for marijuana possession anywhere in this country,” Mailer said. “That is until you take into account the several large industries who benefit from marijuana’s illegal status, namely the oil, cotton, tobacco, alcohol, and prison industries. If we were to legalize the plant, they would all take a hit.  Combined, that is a tremendous amount of lobbying power. So, I would be surprised if we see legalization any time soon.”

Mark Kleiman at The Los Angeles Times:

There’s one problem with legalizing, taxing and regulating cannabis at the state level: It can’t be done. The federal Controlled Substances Act makes it a felony to grow or sell cannabis. California can repeal its own marijuana laws, leaving enforcement to the feds. But it can’t legalize a federal felony. Therefore, any grower or seller paying California taxes on marijuana sales or filing pot-related California regulatory paperwork would be confessing, in writing, to multiple federal crimes. And that won’t happen.

True, Atty. Gen. Eric H. Holder Jr. has announced that the Justice Department will not prosecute people who are selling medical marijuana in compliance with California’s law. But that’s an entirely different matter. The attorney general could cite good legal and constitutional reasons for that policy, because the regulation of medical practice is a state and not a federal responsibility. And if the medical justification for most of the pot sold through dispensaries is sketchy at best? Well, that too is a state problem. The international treaties that require their signatories, including the United States, to ban the production and sale of cannabis have an exception for medical use.

Most important, the feds can afford to take a laid-back attitude toward California’s medical marijuana trade because it’s unlikely to cause much of a trafficking problem in the rest of the country. Because dispensaries’ prices are just as high as those for black-market marijuana, there’s not much temptation to buy the “medical” sort in California and resell it out of state.

By contrast, the non-medical cannabis industry that would be allowed if Proposition 19 passed would quickly fuel a national illicit market. According to a study issued by the RAND Corp.’s Drug Policy Research Center this month, if the initiative passes, the pretax retail price of high-grade sinsemilla marijuana sold legally in California is likely to drop to under $40 per ounce, compared with current illicit-market (or dispensary) prices of $300 an ounce and more. Yes, the counties would have authority to tax the product, but even at a tax rate of $50 an ounce — more than 100% of the pretax price — the legal California product would still be a screaming bargain by national standards, at less than one-third of current black-market prices.

As a result, pot dealers nationwide — and from Canada, for that matter — would flock to California to stock up. There’s no way on earth the federal government is going to tolerate that. Instead, we’d see massive federal busts of California growers and retail dealers, no matter how legal their activity was under state law.

More Kleiman at his blog:

If you’re not keeping score at home, that’s the California marijuana-legalization initiative.  My op-ed explaining why it makes no sense is now on the LA Times webpage, and will appear in Sunday’s paper.  Bottom line:  a state can’t tax and regulate a federal felony.

I may vote for the proposition anyway, just as a protest against the current laws. Too bad the California ballot initiatives don’t permit you to vote for “a pox on both your houses.”

Kevin Drum:

Me too. Besides, there’s really no telling what the feds will do until someone forces the issue. So why not force it? At the very least it has a chance to move the public opinion needle a bit. Besides, I think it would be entertaining to watch the tea partiers twist in the wind trying to figure out which is more important: (a) making sure the hippies don’t get their dope or (b) fighting the jackbooted tyranny of federal officers interfering with the sovereign Tenth Amendment right of states to police their own borders. Or something.

In any case, my guess is that Prop 19 will fail. It probably would regardless (it’s already behind 44%-48%), but Mark is right: opponents can make a pretty scary case that it would lead to California becoming the pot capital of the United States and fueling gang/mafia/DEA wars of all stripes. The ads sort of write themselves. Unfortunately, we’re probably still a few years away from having any chance of seriously discussing a sane marijuana policy. Even in California.

Andrew Sullivan

Stephen Bainbridge:

I disagree with fellow UCLA prof Mark Kleiman about a lot of things. We’ve crossed blogosphere swords occasionally. But I still respect his vast knowledge of drug policy, so I take his analysis of California’s pot legalization ballot proposition (number 19 for those of you following along at home) seriously

Pete Guither:

Let’s start with Mark Kleiman’s new OpEd in the Los Angeles Times:


California can’t legalize marijuana

There’s one problem with legalizing, taxing and regulating cannabis at the state level: It can’t be done. The federal Controlled Substances Act makes it a felony to grow or sell cannabis. California can repeal its own marijuana laws, leaving enforcement to the feds. But it can’t legalize a federal felony.

Well, duh. Thanks for letting us know that marijuana would still be illegal at the federal level. There’s a newsbreak.

When California passed medical marijuana, it was illegal at the federal level as well. That didn’t stop them from actually, relatively successfully (despite the challenges of federal government intrusion), implementing a licensed medical marijuana system.

But Mark helpfully explains why that could work, while recreational marijuana wouldn’t…

True, Atty. Gen. Eric H. Holder Jr. has announced that the Justice Department will not prosecute people who are selling medical marijuana in compliance with California’s law. But that’s an entirely different matter. The attorney general could cite good legal and constitutional reasons for that policy, because the regulation of medical practice is a state and not a federal responsibility. And if the medical justification for most of the pot sold through dispensaries is sketchy at best? Well, that too is a state problem.

This is just a bizarre statement. Maybe the Attorney General “could cite good legal and constitutional reasons for that policy,” but he didn’t — he merely said that prosecuting medical marijuana in compliance with state law was not a particularly good use of limited resources. How would that be different from prosecuting millions of recreational users?

And “because the regulation of medical practice is a state and not a federal responsibility”? More bizarreness. Yes, under today’s fatally strained Supreme Court interpretation of the Commerce Clause, medical “practice” is mostly a state function, but the drugs used in medical practice (including marijuana) are considered to be under federal control (re-read Raich). The implication that somehow medical drugs are constitutionally the domain of the states (don’t I wish), but recreational drugs are not is an even more unusual Constitutional notion (I’m imagining a bizarro-land Kleiman version of the 10th Amendment reading “The powers not delegated to the States, or to the people, are reserved to the United States”).

Note: it is interesting that I don’t recall Mark mentioning this point about the regulation of medical practice being the domain of the states when it came to discussions about federal health care.

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