By Alex Kreit, Assistant Professor of Law & Director of the Center for Law and Social Justice, Thomas Jefferson School of Law. Kreit is also Chair of the City of San Diego's Medical Marijuana Task Force & President of the San Diego Lawyer Chapter of ACS.
Judging by the early election season news coverage a California ballot initiative to tax and control cannabis -- for recreational, not just medicinal, uses -- is poised to be one of the most closely watched races of the cycle. So, just what would this ballot initiative do and how likely is it to pass? This post will provide a primer on the law and politics of California's marijuana legalization initiative.
The aspect of the ballot initiative that I've found catches most folks by surprise is what it won't do: make the sale of marijuana legal in the state of California. That's right, despite being billed in media reports as a vote on marijuana legalization, the proposal would not directly legalize the commercial sale, cultivation, or distribution of marijuana. Instead, it would allow local governments to enact ordinances to tax and regulate the commercial sale of marijuana.
In other words, Amsterdam-style marijuana coffee shops would be legal only in cities or counties that wanted to permit them. And, in the cities and counties that did not take up the ballot measure's invitation, buying and selling marijuana would remain illegal. In the near term, it is likely only a relatively small percentage of localities would decide to opt-in and so marijuana would remain illegal to buy and sell in most of the state even if the initiative were to pass.
While the measure leaves commercial sale to the discretion of local governments it would have an immediate statewide impact by eliminating all civil and criminal penalties for the possession and cultivation of small amounts of marijuana for personal use. This part of the law would apply across the state and local governments could not opt out of it. Given that approximately 61,000 Californians were arrested for misdemeanor marijuana possession in 2008, this provision of the law would be likely to have a significant impact by freeing up those law enforcement resources for other purposes.
In a nutshell, then, the law would legalize the possession and cultivation of small amounts of marijuana across the state and allow local governments to make commercial sale and distribution legal within their area limits.
At this point, you may be thinking to yourself: "Let's assume the initiative does pass. Would it even matter? Won't marijuana still be illegal under federal law?" Yes, marijuana would remain illegal under federal law. But, that fact may be less of an obstacle to the California proposal than most people think. There are two main reasons for this.
The first is that the federal government cannot require a state to criminalize conduct. In an insightful recent article, Robert Mikos of Vanderbilt explains in detail why this is so, using state medical marijuana laws as an example. The article is well worth reading in its entirety. For our purposes, though, the key take-away is that the odds that a court would find the ballot initiative preempted by federal law are exceedingly small.
The second reason has less to do with the law and more to do with resources. While the federal government may have the legal authority to arrest and prosecute small-time marijuana users it does not have manpower. In 2008, only 626 simple marijuana possession cases were disposed of in federal court. DEA agents are not out patrolling the streets or issuing speeding tickets. Those tasks are performed by state and local law enforcement agencies. As a result, if California's ballot measure were to pass, there is not much the federal government could do when it comes to the possession and cultivation of small amounts of marijuana within the state.
Local governments that decide to establish a regulated system for the sale of marijuana may run into more difficulty vis a vis federal law. Not surprisingly, a store openly selling marijuana would be much easier for federal law enforcement to target than a person in growing a small amount of marijuana in their home. Even when it comes to marijuana storefronts, however, California's experience with medical marijuana indicates that practical reach of federal law enforcement may be somewhat limited. In 2008, before the Obama Administration announced it would no longer go after individuals in compliance with state medical marijuana laws, there were at least several hundred medical marijuana dispensaries operating openly throughout California.
That said, the federal response to localities that decide to allow the commercial sale of marijuana, is likely to present the most interesting political and legal issues if the initiative passes.
And that is a big if. While a recent Survey USA poll showed the measure polling at 56%, Chris Bowers at OpenLeft dug deeper into the poll's numbers and made a persuasive case that support among voters who are likely to turn out in midterm elections is actually more like 51%. In other words, it looks like a toss-up.
Whatever side of the issue one falls on, I think almost everyone would agree that between the near-even poll numbers and the symbolic impact that passage would have on our nation's forty-year war on drugs, this will be among the more interesting campaigns to watch this year.
[Image via Wikimedia Commons.]