Proposition 64: Legalizing Marijuana Use, Possession & Regulated Cultivation Under State Law[1]

Among the most anticipated proposition in this year’s tomb of propositions is Proposition 64, which proposes to legalize marijuana for recreational use. Marijuana for any use is still illegal under federal law—as the DEA recently confirmed.[2] That said, as a practical matter, most “policing” is regulated by state law, not the by the feds. Moreover, even where the feds have jurisdiction, the Department of Justice has commonly (but not always) opted not to prosecute lower level marijuana offenses.[3] This leaves the possibility for tension between federal and state regulation of marijuana. States have seen legalization as a possible strategy to take control of an otherwise unmonitored and untaxed industry. In other words, proponents think our kids would be safer, users healthier, and revenues higher if we had greater control over the industry by way of legalization. Opponents prefer the status quo.

With few exceptions, marijuana is illegal worldwide as well. This is partly due to the outcomes of the second Geneva Opium Convention in 1925, during which the Egyptian delegation persuaded attendees that cannabis was as dangerous as opium, citing questionable statistics linking its use with insanity.[4] Despite the passage of time, legalization has occurred slowly and only in very limited areas. Of the nearly 200 countries worldwide, only eight have some form of legalization—including the US.[5] In fact, half the states allow the use of marijuana for medical purposes, while only four states have legalized its recreational use: Alaska, Colorado, Oregon, and Washington.[6] This fall, a handful of the 25 remaining states where marijuana use is prohibited are pushing for some form of legalization—including Arizona, Arkansas, Florida, Maine, Massachusetts, Montana, Nevada, and North Dakota.[7],[8]

So, what does all this mean? Is legalization a good or bad idea?

There are many arguments for and against legalization. Most arguments for legalization focus on the lost opportunity to tax a product that will continue to be sold despite any “war on drugs,” the inability to control the quality and distribution of the product absent legalization and regulation—especially to minors—and a weakened opportunity to study its health effects. Additionally proponents argue that legalization is consistent with the fundamental value of allowing people the freedom to choose their vices as long as they do no harm to others and to perceive any negative impacts as more of a public health issue than a criminal issue. Similar arguments were made to oppose regulations that now require motorcyclists to wear helmets in California.[9] Opponents argue that marijuana is an addictive drug and that legalization would send the message that the drug is acceptable, if not harmless, and create not just a shift but a growth in consumers. Further, they claim there will be health consequences, ranging from increased injuries and fatalities—particularly from impaired driving, to cognitive impairment. Worse yet, they claim users would eventually try and move onto even harder drugs (an argument rejected by the DEA just this year[10]).[11],[12] More fundamentally, they reason that most of the arguments for marijuana legalization could be used for any illicit drug, which makes for a pretty slippery policy slope towards drug liberalization.[13] So which position is better supported?

Anecdotal evidence suggests that States where marijuana has been legalized have not turned into drug-infested wastelands where kids that one played in playgrounds suddenly started smoking pot instead. On the other hand, these state-based experiments are new and logically it is unrealistic to think that people won’t be more fearless about partially legalized marijuana use. Adult use of the drug is likely to be modeled by youth. This means that both previous users who limited their recreation to more private venues will be joined by new users no longer inhibited from trying marijuana purely because of its legality. After all, there are people in this world driven extensively by societal expectations and held in check by things like laws. The limited information available from these test markets, based on a very small and unreliable sample (about 2 years), shows that 2 years after Colorado legalized marijuana, there was a dramatic decrease in criminal charges associated with the drug, an increase in state revenues from taxes, a modest increase in DUI charges associated with marijuana use, and a “significant increase” in marijuana-related hospitalizations.[14]

Proposition 64, California

Proposition 64 in California lays out a plan to permit recreational use of marijuana for adults 21 years of age and older.[15] In an attempt to meet the needs of both proponents and opponents, its broad goal is to shift production and sales from an illegal market to one that can be regulated, including restricting access by minors and protecting public safety, public health and the environment.[16] More specifically, adults 21 and up would be able to possess and use marijuana recreationally in the privacy of their own homes or in businesses licensed for onsite consumption; smoking while driving or in any public venue would remain illegal. Users would be permitted to carry up to 28.5 grams of marijuana or 8 grams of its concentrate, except on the grounds of a school, day care center or youth center with children present. Finally, these adults could grow up to six plants within their homes—as long as the area was locked and could not be seen from a public place.

Those wishing to sell recreational marijuana legally would need to acquire a state license from the Bureau of Medical Cannabis Regulation, which would be renamed the Bureau of Marijuana Control; licenses would not be given to businesses that also sell tobacco or alcohol. Licensed businesses would not be allowed to sell marijuana within 600 feet of a school, day care center or youth center. Local governments could require additional licensing, as well as impose additional taxes on cultivation and sales. They could also ban the sale of marijuana altogether within their jurisdictions.

To better control safety, all recreational marijuana would be tracked from cultivation to sale, as well as tested by an independent agency for contaminants and packaged in labeled, child-resistant packaging. Further, marketing efforts would be restricted to adults 21 and over. In practice, this means that no advertising could exist in areas where minors are present nor through media unless viewership 21 and up is at least 71.6%.

Taxes would be charged on the cultivation and sale of recreational marijuana. Specifically, flowers would be taxed at $9.25 per ounce and leaves at $2.75 per ounce, while a 15% tax would be imposed on the retail price at the point of sale. State revenues from legalization could eventually reach $1 billion per year according to the Legislative Analyst’s Office, in addition to reducing law enforcement and incarceration costs.[17] In fact, people currently serving sentences for marijuana-related crimes could be resentenced and/or have their offenses dismissed.[18] Revenue would go to the California Marijuana Tax Fund. Some of the funds would be used for Proposition 64 implementation and enforcement, while the rest would support research on the impact of the proposition, the health effects of medical marijuana, and vehicle impairment protocols; funding grants to health departments and nonprofits for a variety of human services and rehabilitative initiatives; and supporting youth programs, environmental protections from marijuana cultivation, and programs to combat the negative effects of marijuana use.[19]

The Arguments

Those in favor of Proposition 64 highlight the protections it puts in place for youth and safety initiatives for users that don’t exist in the illegal market and the new revenue stream it would create that could be focused on funding “good.” Opponents claim that legalization would result in more impaired driving and driving fatalities, increased illegal drug activity and an unfavorable impact on youth by allowing cultivation near schools and parks and advertising to youth. They further argue that underprivileged neighborhoods and small marijuana farmers will suffer the greatest negative impact.

There is a lot we do not know about marijuana or the repercussions of legalizing it for recreational use. However, Proposition 64 takes a comprehensive approach to legalization while taking advantage of the revenue earned to promote the best outcome possible. In short, it funds activities that better our knowledge base about its benefits and harms, and it outlines a proactive strategy for funding initiatives that support health and human services—programs for underprivileged populations. That said, opponents are correct—marijuana would be more easily accessible near schools and parks; 600 feet isn’t very far and brick and mortar in and of itself is “advertising” to minors. Further, allowing formal advertising to audiences of at least 71.6% adults does not protect the remaining percentage that is not. And, fatalities—they will likely rise as the stigma of illegality of the drug and its use are removed. Plus, there isn’t (yet) an easy test of impairment—hence the need for research (funded in this initiative). As for underprivileged neighborhoods, they are already subject to higher concentrations of liquor stores and lower concentrations of grocery stores than wealthier neighborhoods. Marijuana businesses are likely to crop up in these neighborhoods too. Much like the arguments against soda machines in schools, we see two arguments butting heads: the product is used more by the community vs. the product brings money to the community. This is the case for Proposition 64 as well. Will more people in economically depressed neighborhoods provide increased demand and resulting increased supply (stores)? Likely. Will it be a source of income for the community—feeding not only from the community but outsiders who patronize these establishments? Likely. Last on this year’s opposition list are the existing marijuana farmers. They are resistant not just to the cultural change of joining a legal system but the costs involved, including the taxes they will now have to pay and the potential of lost revenue for selling bud to other states if production is tracked from plant to point of sale.[20] In the current system where fines are paid for illegal cultivation, there are already costs, however. And any cultural identity or profit stemming from illegal production for export to other states will likely continue depending on the strength of audits.

The Medical Research

Strangely, opponents focus more on the fact that youth should be protected rather than the reasons why. Nor do opponents focus on the benefits or dangers of adult use. Both points likely stem from the reality that research on marijuana use isn’t definitive: many studies point to deleterious health and lifestyle effects while others do not. Like with many scientific studies, a lot depends on study quality. For example, one study might deduce that marijuana use can lead to memory loss after surveying 1,000 high school students about their marijuana use and test scores over a four-year period. Although results showing lower scores among marijuana users or decreasing scores among those who became users might be interesting, that data does not definitively prove that marijuana is to blame. Rather, perhaps those who smoked marijuana cared less about their studies in the first place, or perhaps those who started to smoke marijuana had other things going on in their lives that impacted their test scores that investigators failed to measure, such as a death in the family or the loss of a study partner or tutor. Studies showing no impact suffer similarly. Another possibility is that there is an effect but it is reversible after a period of abstinence, which has been suggested in past studies.[21]

While certainty seems elusive based on the current studies, some conclusions can be drawn. A recent article published in the New England Journal of Medicine (NEJM) attempts to summarize what scientists have deduced about the short- and long-term effects of marijuana use.[22] First, marijuana can have harmful effects, including cognitive impairment. A user under the influence, for example, can show signs of impaired memory, judgement and coordination (much like with alcohol). This contributes to increased high-risk behaviors that can result in anything from sexual transmitted diseases to driving fatalities. In the long run, not only does addiction to (dependence upon) marijuana increase, but users seem to show more permanent diminished brain functionality—and the lack of educational, professional and social achievement that results from proper brain function. In terms of mental illness, paranoia and psychosis may increase as Egypt feared, but causality is less clear since those who are more likely to use marijuana may also be predisposed to mental illness. In terms of respiratory disease, such as bronchitis and lung cancer, the evidence is also weak—marijuana likely has an impact but more research is needed. That said, the state lists marijuana smoke as a cancer-causing carcinogen.[23]

So, while the science is in its early stages, the NEJM study makes it clear that repercussions do exist for users of marijuana. But perhaps the greatest point this article makes is that all repercussions are amplified for minors. The brain is more prone to addiction and cognitive impairment before the age of 21, and an early start usually leads to more health problems and a longer trajectory of use. Combined with a dose response (i.e., more use generally equals more problems) the impact on minors can be considerable. And, unfortunately, legalization breeds acceptability, and acceptability leads to greater use—assuming access.

Unquestionably, marijuana is now perceived as less “evil” than it was in 1925; some of that perception appears based in science, some is based on changed societal norms. In California, if not the entire US (and even among academics), people are almost evenly split on legalization. The ultimate verdict seeming to hinge on how individuals view marijuana. Is it a recreational drug like alcohol or cigarettes, which each are harmful yet still legally sold to adults? Is it a medicinal drug that should only be available when prescribed by a doctor? Is it an illicit drug like cocaine or heroin, drumming up anecdotes of lives and families destroyed by addiction? Science hasn’t conclusively answered these questions, but if forced to choose (as we think we are here) we’d conclude it is some combination of these. Perhaps a substantce with some medicinal value, that many use recreationally with only some, manageable, negative side-effects, that is addictive enough to create real personal and societal problems for others.

Criminal Justice Issues

While there has been a dramatic decrease in the public perception of the “evils” of marijuana, criminal laws have not fully kept pace with that change. The latest crime statistics show that while arrests have dropped, felony (the highest form) marijuana-related arrests in 2015 still numbered nearly 9,000 across California and accounted for nearly 20% of tracked drug-related arrests.[24] The felony arrests number post-dates the passage of Proposition 47 that reduced several felonies to misdemeanors thus automatically removing those arrests from the tracked figures.[25] Moreover, 90% of those arrested were adults, with offenders aged 20-29 making up the largest group.[26] Another 6,500 Californians faced misdemeanor marijuana charges in 2015[27] this after some marijuana offenses were reduced in 2011 to infractions.[28] For further discussion of the societal and fiscal costs of aggressive criminal justice provisions see our 2014 analysis of Proposition 47 here.[29]

Separately from the societal costs associated with removing individuals from the public workforce, stigmatizing them as criminals (especially felons) thus dramatically reducing their ability to re-enter the workforce post-incarceration, the direct cost to incarcerate a single inmate in California for a single year is $47,102 according to the Legislative Analyst’s Office.[30] While not all persons incarcerated for marijuana related charges would be freed, rough math tells us that the costs of incarcerating just the felons exceeds 423 billion dollars. That strikes us as a very high cost (to individuals committing the crimes, families that depend on those individuals, and the state) to pay for what has at best been a marginal reduction in the availability of marijuana, which as we discussed above, is probably dangerous, but less so than many other widely available substances.

Conclusion

We think this proposition and the issues surrounding it are a very tough call. We think proponents of the proposition are unrealistic about the dangers of marijuana for adults and children and we fear that this misperception will only grow with legalization. We think opponents are overly hysterical about the effects of its use. The reality lies somewhere in the murky middle. While we accept that the science isn’t fully settled, we buy the NEJM’s conclusion that marijuana has negative short and long-term effects, that it leads to psychological (as opposed to physical) addiction, increases in high-risk behaviors and the like for adults and that the problems are amplified for children. Our problem is that while these ills are bad they do not seem so bad that criminal sanctions are justified. We find ourselves unable to justify the human, societal, and state budget costs for incarceration of individuals caught using, buying, selling, or growing this moderately dangerous drug. The reality is that we do not incarcerate producers, sellers, or users of other moderately dangerous products and we cannot justify that disparity.

We wish we could be more optimistic that our society is sufficiently responsible to self-educate on the dangers associated with marijuana. We cannot. Nevertheless we cannot justify continuing to jail people for making this particular bad choice or facilitating others decision to do the same.

Extensive lists of organizations for and against Proposition 64 are available at: https://ballotpedia.org/California_Proposition_64,_Marijuana_Legalization_(2016).

Recommendation: Weak YES

[1] A gigantic – we’re talking 10 Gallon – hat tip to one of our Politopals who did much of the yeoman’s effort in researching and drafting for this piece. Our Polito-angel here is a public health professional with a passion for writing, in particular literary journalism. She is originally from Upstate New York, spent a decade living in Los Angeles, and is currently living in the Seattle area.

[2] http://www.usatoday.com/story/news/2016/08/11/dea-marijuana-remains-illegal-under-federal-law/88550804/

[3] http://voterguide.sos.ca.gov/en/propositions/64/analysis.htm

[4] http://www.lse.ac.uk/IDEAS/publications/reports/pdf/SR014/Mills_JamesH.pdf

[5] https://www.yahoo.com/news/countries-where-marijuana-legal-form-193400717.html?ref=gs

[6] http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881

[7] https://ballotpedia.org/Marijuana_on_the_ballot#tab=By_year

[8] http://www.thecannabist.co/2016/07/14/definitive-guide-us-states-voting-recreational-medical-marijuana-inovember-2016-election/58063/

[9] http://www.liberty.edu/champion/2013/10/marijuana-legalization-proscons/comment-page-1/

[10] http://www.usatoday.com/story/news/2016/08/11/dea-marijuana-remains-illegal-under-federal-law/88550804/ [DEA rejecting “gateway drug” as justification for maintaining Schedule 1 narcotic status.]

[11] http://legalizationofmarijuana.com/arguments-for-and-against-the-legalization-of-marijuana

[12] http://www.drugwarfacts.org/cms/Gateway_Theory

[13] http://www.seattletimes.com/opinion/drug-liberalizationrsquos-time-has-arrived/

[14] http://cdpsdocs.state.co.us/ors/docs/reports/2016-SB13-283-Rpt.pdf

[15] http://voterguide.sos.ca.gov/en/propositions/64/

[16] https://www.oag.ca.gov/system/files/initiatives/pdfs/15-0103%20(Marijuana)_1.pdf?

[17] http://www.lao.ca.gov/ballot/2016/Prop64-110816.pdf

[18] http://voterguide.sos.ca.gov/en/propositions/64/analysis.htm

[19] https://ballotpedia.org/California_Proposition_64,_Marijuana_Legalization_(2016)

[20] http://www.vice.com/read/california-pot-farmers-emerald-triangle-legalization

[21] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3037578/

[22] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4827335/

[23] http://voterguide.sos.ca.gov/en/propositions/64/analysis.htm

[24] https://oag.ca.gov/sites/all/files/agweb/pdfs/cjsc/publications/candd/cd15/cd15.pdf? (p.20)

[25] https://oag.ca.gov/sites/all/files/agweb/pdfs/cjsc/publications/candd/cd15/cd15.pdf? (fn. 8)

[26] https://oag.ca.gov/sites/all/files/agweb/pdfs/cjsc/publications/candd/cd15/cd15.pdf? (p.42)

[27]https://oag.ca.gov/sites/all/files/agweb/pdfs/cjsc/publications/candd/cd15/cd15.pdf? (p.42)

[28] https://oag.ca.gov/sites/all/files/agweb/pdfs/cjsc/publications/candd/cd15/cd15.pdf? (p.64)

[29] https://politomuse.wordpress.com/archives/california-state-propositions-nov-2014/

[30] http://www.lao.ca.gov/PolicyAreas/CJ/6_cj_inmatecost

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