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Proposition 19: California’s Marijuana Legalization Debate

By Kim Raney, Chief of Police, Covina, California, Police Department; and Vice President, California Police Chiefs Association, Covina, California



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n November 2, 2010, for the first time in almost four decades, Californians will vote on an initiative that would legalize possession and cultivation of marijuana. Proposition 19, the Regulate, Control and Tax Cannabis Act of 2010, would make it legal for anyone 21 or older to possess, share, or transport up to an ounce of marijuana for personal use and to grow up to 25 square feet per residence or parcel. Cities and counties (but not the state government) would be authorized to regulate and tax commercial marijuana production and sales.


Recent History

The recent history of marijuana in California comprises a number of legislative, legal, and cultural events surrounding use of marijuana, hashish, and cannabis. California was the first state to establish a medical marijuana program, enacted by Proposition 215 in 1996 and California Senate Bill 420 in 2003. Proposition 215, also known as the Compassionate Use Act, was approved by initiative with a 55 percent majority, allowing people with cancer, AIDS, and other chronic illnesses the right to grow or obtain marijuana for medical purposes when recommended by a doctor. Senate Bill 420, or the Medical Marijuana Protection Act, was signed into law by Governor Gray Davis effective January 1, 2004, and established an identification card system for medical marijuana patients. It has become clear, despite the claims of use by critically ill people, that only 2 percent of the people using “medical marijuana” are seriously ill. The profile of an “average” user of medical marijuana in California is male, 30 years old, has been using marijuana for 15 years, and suffers from no serious medical condition.

Since 1996, 12 states have enacted similar laws. As a result of the court rulings of United States v. Oakland Cannabis Buyers’ Cooperative1 and Gonzales v. Raich2 and the classification of cannabis as a Schedule I drug, the federal government does not permit cannabis to be used medically; the Drug Enforcement Administration, until very recently, has taken an active stance against medical cannabis and often raids cannabis dispensaries.

Since 2004, cities and counties have been left to implement their own policies in regard to marijuana dispensaries. Some cities placed a moratorium on the licensing of marijuana dispensaries until city staff or city councils could study the issue. Some cities amended their municipal codes relating to business licenses, ensuring that any business licensed in their jurisdications complied with local, state, and federal law, in essence precluding marijuana dispensaries from opening. Other cities allowed the dispensaries to open, most with regulations that controlled the number of dispensaries allowed as well as establishing guidelines in regard to operating with certain distances from schools, parks, libraries, and so forth.


Proponents

Proponents of Proposition 19, which include the California NAACP; the Oakland and Berkeley City Councils; the Drug Policy Alliance; Marijuana Policy Project; National Black Police Association; and Joseph McNamara, former San Jose, California, police chief, believe that marijuana policies in California have failed and that by regulating marijuana, distribution can be both controlled and taxed.

According to proponents, surveys show that young people have easier access to illegal marijuana than they have to alcohol or cigarettes. Why? Because the production and sale of these latter products are regulated and legally limited to adults. As a result, teen use of cigarettes has fallen to its lowest levels in decades, while young people’s use of cannabis is rising. In short, legalization, regulation, and public education—coupled with the enforcement of age restrictions—most effectively keep mind-altering substances out of the hands of children. Despite more than 70 years of federal prohibition, marijuana is here to stay. Proponents claim it’s time to acknowledge this reality, cease ceding control of the marijuana market to untaxed criminal enterprises, and put it in the hands of licensed businesses.

Legalization, advocates point out, will also reduce a host of societal costs: the needless arrests each year of some 78,000 Californians for marijuana-related offenses, the overcrowding of the state prison system, the havoc wreaked by Mexican drug cartels that rely on marijuana for 60 percent of their revenue, and the inability of police spread thin by budget cuts to focus on violent crimes. Backers also emphasize that legalizing and regulating marijuana will actually help keep it away from young people, who now say buying weed is easier than obtaining booze. “Swing voters, in their gut, completely understand that banning marijuana outright has been a total failure,” says Stephen Gutwillig, the California director of the Drug Policy Alliance, who has sat in on focus groups of women from suburban Los Angeles. “They know it makes no sense to treat marijuana differently than alcohol or tobacco. But we’re relatively early in the social discourse about how to fix this problem. There’s a comfort level that has to develop very quickly for Prop 19 to pass.”3

The driving force behind the measure is Richard Lee, the 47-year-old activist and former Aerosmith roadie who helped spark the rise of medical marijuana in California. As founder of Oaksterdam University, the country’s first self-proclaimed Cannabis College, Lee put up $1.3 million to gather the 430,000 signatures needed to put the legalization initiative on the ballot this fall. Leading advocates of drug reform urged him to wait until 2012, when President Obama is up for re-election and young voters will be more likely to turn out. But in March, after a poll he commissioned showed that 54 percent of Californians support legalization, Lee insisted on moving forward.


Opponents

Opponents of Proposition 19 include the California Police Chiefs Association; California State Sheriffs Association; California Police Officers Association; California District Attorneys Association; California Chamber of Commerce; both gubernatorial candidates, Jerry Brown and Meg Whitman; as well as both candidates for state attorney general, Steve Cooley and Kamela Harris. The opposition believes the initiative is flawed public policy and compromises the safety of the state’s communities, roadways, and workforce.

From the outset of this campaign, police chiefs, sheriffs, and district attorneys believed the title of the initiative itself was problematic and misleading. The title “Regulate, Control and Tax Cannabis Act of 2010” unfairly misleads the public into believing that the act accomplishes what its title denotes: that it regulates, controls, and taxes cannabis. Quite to the contrary, Proposition 19 provides no regulatory framework for accomplishing these feats, but instead delegates regulatory and enforcement responsibilities to the 478 local city and 58 county governments. This local government “figure it out” approach creates confusion and misunderstanding and actually limits state control over marijuana-related activities. Forcing local governments to develop comprehensive cannabis-related regulations will not only unduly burden local governments, but also certainly will lead to a chaotic and confusing result.

While proponents claim the initiative will raise more than $1.4 billion in new state tax revenue, there is nothing in the initiative to support that assertion. In fact, a recent RAND Corporation study concluded that potential revenue benefits to the state were illusory.4 More important, the same study suggested that the actual costs to the state for legalization would far exceed any speculative revenue benefit. The ballot measure only provides for the imposition of local marijuana taxes and does not even authorize the state to impose a marijuana tax. Since marijuana remains illegal under federal law, any locally imposed taxes are legally uncollectible according to case law.

Additionally, proponents argue that legalization will free up law enforcement for more pressing criminal and community issues and that more than 70,000 people are arrested each year for marijuana violations, which will immediately help by reducing the prison overcrowding situation in California. The truth of the matter is that of the 171,161 prisoners in California as of December 2008, only 1,499 of those prisoners were incarcerated for crimes related to marijuana, and those crimes were identified as felonies such as possession for sale, sales, and cultivation of marijuana.

Another disagreement between the two sides is the involvement of organized crime within the marijuana trade in California. Estimates range that up to 60 percent of the marijuana trade in California is controlled by the Mexican drug cartels, and it is naive to think they will simply disappear should this initiative pass. If Proposition 19 passes, there are strong indications that the cartels will simply try to legitimize certain aspects of their cultivation and distribution components. Also, California could rapidly become both the cultivation and distribution center for the rest of the United States, and it is highly unlikely that the cartels are going to walk away from a potentially lucrative market.

California should also learn the lessons history has taught other countries and states that attempted to legalize marijuana. When the Netherlands legalized marijuana cafés in the 1980s, there were only three organized crime operations in that country. Today, there are more than 90 organized crime enterprises from throughout Europe that have descended on the Netherlands. In 1978, Alaska decriminalized small amounts of marijuana for adults, and by 1990 studies estimated that over 51 percent of children under 18 years old were using marijuana. It is one of the reasons Alaska abandoned this failed experiment.

Of equal concern is the impact legalization will have on motorists in California, and the very real potential of increased drugged driving on our streets and highways. Unlike many countries in Western Europe, which provide that the presence of any level of an illegal drug in a person’s system is a driving violation, California has no statutory system in place to deter drugged driving. In fact, the California Legislature in 2008 rejected legislation that would have adopted a Western European per se standard. Drugged driving is a growing problem, and marijuana is a major element of drugged driving; if law enforcement has no real tools to combat drugged driving, surely no one can seriously suggest that the legalization of marijuana will help relieve this problem.

In the five years prior to the legalization of medical marijuana in January 2004, 631 fatalities occurred on California highways where the driver tested positive for marijuana. bSince 2004, that number has increased to 1,240, an increase of almost 100 percent. Should Proposition 19 pass, estimates are that more than 800 fatalities will occur annually on highways where the driver tests positive for marijuana, and marijuana will rival alcohol as the leading cause of traffic fatalities. While proponents claim marijuana will raise $1.4 billion annually in tax revenue, the economic loss from marijuana-related fatal accidents is estimated at $4 billion.


The Impact on the Workplace

The Federal Drug Free Workplace Act (DFWA) requires governmental grantees and contractors (for contracts over $100,000) to comply with specific requirements to establish a drug-free workplace. Should Proposition 19 pass, employers could not meet the requirements of the DFWA because the proposition prohibits them from denying “any right or privilege” or discriminating against anyone for marijuana use. Statewide, more than $9 billion of federal funding is at risk. Employers would be prohibited from discrimination against marijuana users by taking marijuana use into account when deciding whether to hire an applicant. Any marijuana-smoking job applicant not hired could file a lawsuit claiming marijuana use was the reason, even if the employer had no knowledge of the use. Moreover, unlike alcohol use, which employers can prohibit entirely at work, under Proposition 19 employers could only take action for marijuana use that actually impairs work performance.

If Proposition 19 becomes law, employers would have to permit employees to smoke marijuana while at work. Employers would be required to make a reasonable accommodation for marijuana users. Employers would be required to pay for marijuana-related accidents through workers’ compensation insurance and liability exposure to third parties. An employer could face lawsuits and settlement costs for employees who injure outsiders as a result of their marijuana use.


Election Day 2010

The entire country will be watching California on Tuesday, November 2, 2010, to see if Proposition 19 passes or fails. Simply put, what’s at stake is nothing less than the social fabric of this great state, as well as the health and safety of future generations of Californians for years to come. It is with this practical understanding of the subject that public safety leaders from throughout California, as well as the political leaders, education leaders, business leaders, civic leaders, and civic organizations, have united to send a clear, concise, and honest message to constituents to assist California voters in making an informed decision as they submit their ballots in this critical public safety and public policy initiative. ■


Chief Kim Raney is completing his 33rd year in law enforcement and has been chief of the Covina Police Department since 2001. A past president of the Los Angeles County Police Chiefs Association, Chief Raney is vice president of the California Police Chiefs Association and a spokesperson for the California Police Chiefs Association regarding Proposition 19.


Notes:

1United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483 (2001).
2Gonzales v. Raich, 545 U.S. 1 (2005).
3Ari Berman, “Just Say Now,” Rolling Stone, September 2, 2010, http://www.rollingstone.com/politics/news/17390/192121?RS_show_page=0 (accessed September 2, 2010).
4Beau Kilmer et al., Altered State? Assessing How Marijuana Legalization in California Could Influence Marijuana Consumption and Public Budgets (Santa Monica: RAND Drug Policy Research Center, 2010) http://www.rand.org/pubs/occasional_papers/2010/RAND_OP315.pdf (accessed September 2, 2010).

Stepping Stones to Legalization?

Medical Marijuana

Fourteen states (Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia have medical marijuana laws. Maryland allows the medical use defense in court, and Arizona allows physicians to prescribe marijuana. Two states have medical marijuana initiatives on their November 2010 ballots: Arizona and South Dakota.

Decriminalization of Marijuana


Thirteen states (Alaska, California, Colorado, Maine, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, New York, North Carolina, Ohio, and Oregon) have decriminalized marijuana use and possession, negating the seriousness of the crime and reducing the penalty associated with it. Six of these states also have medical marijuana laws.

Legalization of Marijuana—Proposition 19

California, like many other states in this uncertain economy, is looking for ways to increase state revenues and decrease state spending. This search has produced Proposition 19, which calls for the legalization, the regulation, and the taxation of cannabis, in an effort to alleviate the economic burden of the state. However the cost-effectiveness of such a plan is in question. Will tax revenues, a decrease in marijuana-related prisoners, and less policing for marijuana-related offenses offset the costs of regulation? Will the costs to society (loss of productivity and health concerns) outweigh any possible revenue-generating benefits?

We can look to other countries’ experiences with decriminalization and legalization for answers.

  • The Netherlands—After regulating marijuana, consumption nearly tripled among 18- to 20-year-old Dutch youth
    (15 percent to 44 percent). See What Americans Need to Know about Marijuana, Office of National Drug Control Policy, at www.ncjrs.gov/ondcppubs/publications/pdf/mj_rev.pdf. Dr. Ernest Bunning, stated, “[t]here are young people who abuse soft drugs . . . particularly those that have [a] high THC [content]. The place that cannabis takes in their lives becomes so dominant they don’t have space for the other important things in life. They crawl out of bed in the morning, grab a joint, don’t work, smoke another joint. They don’t know what to do with their lives.”(See Larry Collins, “Holland’s Half-Baked Drug Experiment,” Foreign Affairs 73, no. 3 (May-June 1999): 87–88).
  • Switzerland—Liberalization of marijuana laws in Switzerland has also brought about damaging results. Switzerland saw a deluge of drug users come from many other countries. Zurich permitted drug use and sales in a part of the city called Platzpitz, dubbed “Needle Park.” Regular drug users soon outnumbered the nondrug using park goers. The area became crime-ridden, forcing the closure of the park, and the experiment has since been terminated.
  • Canada—After a large decline of marijuana use among teens in the 1980s, use increased during the 1990s as young people became “confused about the state of federal pot law” in the wake of an aggressive decriminalization campaign, according to a special adviser to Health Canada’s Director General of drug strategy. Several Canadian drug surveys show that marijuana use among Canadian youth has steadily climbed to surpass its 26-year peak, rising to 29.6 percent of youth in grades 7–12 in 2003. (See “The DEA Position on Marijuana,” www.justice.gov/dea/marijuana_position.html#58, for more information.)

Federal law bans all forms of cannabis and THC as a Schedule I drug (see the Controlled Substances Act of 1970 www.deadiversion.usdoj.gov/21cfr/21usc/index.html).


Please cite as:

Kim Raney, "Proposition 19: California’s Marijuana Legalization Debate," The Police Chief 77 (October 2010): 22–25,
http://www.nxtbook.com/nxtbooks/naylor/CPIM1010/#/22 (insert access date).

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From The Police Chief, vol. 77, no. 10, October 2010. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.








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