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December 23, 2011

History of Drug Laws and ‘Normalization’ In California

by nampadmin

Abstract

Since the 1970’s, California has taken drastic steps towards decriminalizing and normalizing marijuana.  In 1975, California State Senate Bill 95 (SB95) was signed into law, which decriminalized not more than one ounce of marijuana from a felony to a misdemeanor.  The effect of SB95 allowed individuals to avoid booking and imprisonment by only having to pay a nominal fine.  Subsequently, in 1996, the people of California initiated Proposition 215, also known as the Compassionate Use Act of 1996 (CUA)

The basics of the CUA were designed to allow authorized individuals to cultivate, possess and use marijuana for medical purposes with the recommendation of a physician.  Within a decade of passing the CUA, California Senate Bill 420, also known as the Medical Marijuana Protection Act (MMP), was enacted. 

The MMP established an identification card system to give further immunity to marijuana users under the CUA.  In 2010, for the first time, a voter’s initiative act received enough signatures to be placed on the ballot for the full legalization of marijuana in California.  Although the voter’s initiative act to legalize marijuana did not pass, marijuana was further decriminalized that same year from a misdemeanor to an infraction via Proposition 1449. 

The first step back from marijuana deregulation by the State of California was in 2011, when Governor Brown signed Assembly Bill 1300 (AB 1300).  AB 1300 gave local governments the power to regulate how and where marijuana dispensaries can be operated and also gave local governments the power to exile dispensaries completely.  At the time of this report, the Regulate Marijuana like Wine Act of 2012 is attempting to garner enough signatures to be placed on the ballot for the 2012 elections.  This report looks at the shifting marijuana policies and their effect on the normalization of marijuana in California. 

 Introduction

In the state of California, since the mid 1970s, minor possession of marijuana has gone from a felony to a misdemeanor to an infraction; punishable similar to a seat-belt violation.  Furthermore, California has attempted to fully legalize marijuana via a ballot proposition in 2010 without success.  The information regarding the dangers of marijuana and its adverse effects on youth, public health and safety, education, and the economy have been met by public apathy and general disregard.  From decriminalization in the early 1970s to boldly defying federal law in the 1990s, California has been pushing the boundaries of marijuana drug policy. This report is an in depth analysis of the history of marijuana drug policy in California and the misconceptions that are often attached with the drug.  

 National Overview

The 1960’s saw a sharp increase in drug use by American youth.  In response, President Richard Nixon declared a war on drugs in 1969.  In 1971, the United States passed the Controlled Substance Act (CSA), codifying the United Nations Single Convention on Narcotic Drugs of 1961.  By 1979, the U.S. had seen its highest rate of illicit drug use; with marijuana the most abused of all illicit drugs.  In general, society has not treated marijuana with the same caution as other illicit drugs and today several states have passed legislation allowing marijuana to be used for medicinal purposes.  However, the federal government has not changed its position regarding marijuana.  The CSA is still in effect and continues to list marijuana as an illegal, illicit drug.  Because the CSA outlaws marijuana, with some minor exceptions (i.e., federal government testing of the drug) and several states have passed legislation for certain medicinal uses of the drug beyond what the CSA allows, there is a conflict between state and federal law.  The issue is not whether federal law trumps state law, because the Constitution tells us (via the Supremacy Clause) that the federal law is the supreme law of the land, but whether Congress has the power to regulate intrastate commerce.  This issue is addressed below, but the short answer is yes; Congress does have the authority to regulate intrastate commerce in certain circumstances and the control of marijuana is one of those circumstances.    

 Historical Background of Senate Bill 95

Prior to the introduction of California State Senate Bill – 95 (SB95), California State Senator George Moscone led a committee to “ascertain, study and analyze all facts relating to the administration and effect of laws relating to control of the use and availability of marijuana, and report thereon to the Legislature including in its report its recommendations for appropriate legislation.” (Moscone Report) The committee was named the Senate Select Committee on the Control of Marijuana, but is most commonly known as the Moscone Committee (Committee) because Senator Moscone was the chairman of the Committee.  The Committee reported 10 general conclusions with an additional 21 “further” conclusions to the State Senate.  In addition, the Committee submitted 10 recommendations of policy to adopt.  The report is commonly referred to as the Moscone Report.

Moscone Committee’s Conclusions

The 10 general conclusions basically relayed a message to the California State Senate that criminal law and punishment was not the way to handle marijuana.  Their general reasoning was that marijuana use is an individual, private act and the state should not interfere with such individual rights.  Contrary to their individual rights argument, the Committee ignored some invaluable information regarding the adverse collateral effects marijuana can have on user’s families, surrounding communities, and society in general.  The ignored information was attached to the Moscone Report, found in the same articles selectively used by the Committee to base many of their “decriminalizing” arguments.  The ignored information warned of the hazards associated with drug use and the negative effects that leak into society.  Instead of making a disclaimer or addressing these dangers as potential issues, the committee simply ignores the warnings and does not mention them in their conclusions. 

In support of their individual rights argument, the Committee believed marijuana laws were unfair because of law enforcement’s ability to selectively enforce the law against some individuals, while allowing others to use or possess the drug without penalty. The Committee believed that any such law which can only be selectively enforced was not justifiable.  Although this argument is partly true and understandable, it is oversimplified and does not take into consideration how law enforcement is conducted.  What the Committee did not mention here is that their theory that police discretion should be grounds for repealing a criminal law would cause almost every criminal law to be repealed.  Police discretion is a fundamental part of law enforcement and to base a policy argument against it is just the beginning of the misconceptions the Committee relayed as fact to the state senate regarding the relationship between law making, law enforcement, and drug policy.

In addition to the argument of individual rights, the Committee concluded that marijuana use does not threaten society in a way which would justify making it unlawful.  According to the Moscone Report, “Marijuana use is not a threat to public health, safety or morals so as to warrant state intrusion.”  However, the Committee ignored many findings in the same reports which they relied on to make their arguments; which were attached to the report as references.  It is important to note that, although some of the reports ended in inconclusive scientific correlations between marijuana and adverse effects, the conclusions of these reports gave firm warnings about the potential problems with the drug.  For example, in one of the reports used by the Committee, Cannabis, there were major social concerns discussed regarding the negative effect of cannabis on adolescent maturation, negative effect on motivation and productive capacity, the demands upon the “over taxed” resources of medical and social service facilities, and the emotional distress and disturbance on one’s family.  In addition to the social concerns given by the Cannabis article, the article further warned of physical threats to the body.  There were discussions warning of potential bronchial pulmonary disorders and lung cancer and their connections to smoking marijuana.  Instead of reporting on the potential dangers associated with the drug, the Committee focused on the lack of scientific conclusiveness, but it was clearly stated in these reports that the research being conducted would need time to develop.  Regardless, the Committee concluded that there were no known adverse effects to marijuana and that the law against the drug should be an infraction, “if anything.”  

Further Conclusions

The additional 21 “further” conclusions gave statistical data regarding the growth of user rates, costs to the state, and the social issues the Committee believed were due to the then current laws against marijuana.  By the Committee’s own admission, “obtaining accurate quantitative estimates about marijuana law enforcement, court and prison activities is just about impossible.  Records keeping systems are inadequate, interpretation difficult, and conclusions dangerous.”  Although the Committee was warned and gave warning that making conclusions regarding marijuana statistical data was dangerous, they nevertheless made bold conclusions regarding the fiscal costs of the then current marijuana laws.  The Committee’s conclusions regarding the fiscal costs associated with marijuana as an illegal substance are still used today to support decriminalization.  However, the methodologies used to calculate the costs are questionable.  These numbers were based on a method of estimating the aggregated costs of the entire process of arrest through trial, appeal and incarceration.  (Need to finish this section) 

Their statistical data concluded that the state was spending about $1,630 per arrest and the overall average cost per year (1960-1972 inclusive) was $44,407,941. 

 In addition to the fiscal concerns, the Committee believed the then current marijuana laws created social dilemmas for those working within the criminal justice system.  For example, “those who are preparing for careers in the criminal justice system; what to do when they themselves or their superiors are users or have used marijuana, or do not use it but are confronted with situations where friends do; having to prosecute an arrestee for behavior they do not consider wrong.”  The logic here is that because a law enforcement agent is breaking the law or does not agree with the law, the law must be inherently wrong.  In other words, because the police captain is a drug user or the officer is or the officer’s friends are, then the drug must be okay.  This is the same argument as, “everyone’s doing it, so it must be okay.”  Basically, the Committee is telling the senate to circum to peer pressure.  This was the attitude of the Committee and this is what was reported to the California State Senate.  This line of thinking is so facially flawed that it should have raised concerns regarding the motive and intent of the Committee.  Instead, perhaps for pure fiscal concern, conclusions like this were overlooked and this bill made it through to become a law. 

 Furthermore, under “further” conclusion no. 20, the Committee stated, “The impact on the increase or decrease of marijuana use will be minimal, if any, if the law is changed.  It was determined the stated fear California will become a ‘pot-smoking’ state is greatly exaggerated and decriminalization will not put the imprimatur by the legislature of approval on marijuana possession and use.”  Let us fast-forward from 1972, when the Moscone Report was written, to 2011, when this report was written.  It would be difficult to argue that the Committee predicted correctly.  Today, marijuana has become widely accepted subsequent to the State of California’s decriminalization laws.  Perhaps unknowingly, the Moscone Report is believed to be the genesis of the decriminalization laws regarding marijuana in California.  Since the decriminalization of marijuana, California has undoubtedly become a “pot-smoking” state and the increase in use has been far from minimal. 

Committee Recommendations

Basically, the Committee recommended abolishing any criminal offense pertaining to simple possession.  The Committee stated, “Legislature should adopt a program of decriminalization making simple possession of marijuana for private adult use an infraction, if anything.”  (emphasis added)  Inconsistently, the Committee did believe that the laws regarding “cultivation, transportation, sale and selling or giving to a minor, and as they pertain to concentrated marijuana” should remain as they were.  Thus, it would be okay for an individual to have and use marijuana, but the law should still prevent the growing, transporting, and selling of the drug.  The committee seems to have left out a link in the chain of how the drug would get into the market.  How can possession exist without cultivation and transportation?  Where would the drugs come from?  Perhaps, based on the inconsistencies in the statements above, the Committee believed that marijuana users would find the drug naturally growing in the wild and share it amongst themselves, but not with minors.  

Insofar as a description of the policy suggested, the Committee asked the Legislature to “go after the major or big pusher or trafficker, that is, the top levels of the distribution pyramid.”  In other words, take away the restrictions on the consumers and attack the suppliers.  Although this policy is attractive on first impression, it ignores the basic concepts of supply and demand.  Marijuana is a commodity and there is a substantial amount of money to be made in the illegal market.  By taking away restrictions on the consumers, the demand for the drug will presumably go up and thus the supply would need to go up as well to satisfy the demand.  Here, because it is an illegal market, this means more money to be made by illegal operations both within our borders as well as abroad.  With more money to be made by the “big pushers” or suppliers, more power is shifted in their favor.  Instead of focusing solely on the suppliers, legislation should have been considering the effect of supply and demand and kept a stronger attack against both.        

Summary

The Moscone Report was vital to the initial decriminalization of marijuana in California.  Senate Bill 95 was proposed and passed, which decriminalized minor possession of marijuana from a felony to a misdemeanor. 

Unfortunately, some of the key facts which were used in the report were either ill supported or false.  For example, no. 5 of the 10 general conclusions stated, “Marijuana use is not a threat to public health, safety or morals so as to warrant state intrusion.”  (Moscone Report) Although this statement could be interpreted as an opinion, this report was submitted to the State Senate as fact.  The Committee was directed to “ascertain, study and analyze all facts relating to the administration and effect of laws relating to control of the use and availability of marijuana, and report thereon to the Legislature…” (emphasis added)

 Contrary to conclusion no. 5 of the Moscone Report, marijuana does impose a threat to public health, safety and morals, and (under federal law) does warrant intrusion (see section XI below regarding Case Law).  Marijuana is an illicit drug which is classified as a Schedule I drug under the Controlled Substance Act (CSA).  As found in one of the studies relied upon in the Moscone Report, contrary to what was reported to the State Senate, marijuana can have detrimental effects on society and society’s youth if the general public is led to believe the drug is harmless.  Furthermore, this same study which Moscone repeatedly relies on adamantly warns of policy that would make the drug more available to adults by stating, “A policy of making cannabis available to adults would have the effect of making it more available to minors.  This is the lesson of our experience with alcohol.  It would also make cannabis appear to be relatively harmless.  Further, there is no reason to believe that we could effectively control potency and encourage moderate use by a system of administrative regulation or licensing.  People will consume the quantities they require to achieve the desired level of potency or they will seek more potent forms, if necessary, in the illicit market.  Moreover, our present knowledge about cannabis would not permit a policy of legal availability that could be accompanied by suitable assurances as to what might constitute moderate and relatively harmless use.” 

Another study continued their argument against the abolishing of the prohibition of marijuana.  In the following paragraph, the study stated, “The costs to the individual and society of maintaining a prohibition of distribution are severe but they are justified by the probable effect of such a prohibition on availability and perception of harm, in contrast to the likely effect on both of a policy of legal availability.”  Although the study did conclude that the then current penalties of marijuana were too severe, they did not suggest legalizing the drug as the Moscone Report did.  

In addition to the social costs of marijuana use, there are great physical costs to the individual as well.  The most common use of the drug is smoking.  There is no question that carcinogens are toxic to the body and create adverse physical effects.  However, the Moscone Report relied on information gathered from a Jamaican medical study of marijuana smokers, which could not conclude adverse physical effects of marijuana smoke because too many of the test subjects smoked tobacco as well as marijuana and it was not clear which of the two drugs were causing the adverse effects.  Today, there is no question that carcinogens are linked to cancers and other adverse effects on the human body.

The Committee’s ill supported notion that decriminalizing marijuana would not lead to an increase in use and would not make California a “pot-smoking” state has also proved to be false.  Today, California is the “pot-smoking” state in the United States and user rates have steadily increased since the 1970s.

The actual monetary costs reported may have been inaccurate and misleading.  The report relies on several different formulas to calculate the total cost per arrest.  Ultimately the Committee reported the highest estimated cost, disregarding data which would have significantly lowered the final number. 

Perhaps if the Committee would have thoroughly analyzed their then available data, they would have been able to come to more accurate conclusions regarding the facts of marijuana.  Instead, this report was published as fact and relied on by the California State Senate.  Consequently, the Moscone Report has been used as a catalyst for further decriminalization efforts and unfortunately has assisted the efforts to normalize marijuana.

Senate Bill 95 (SB 95)

Based on the Moscone Committee’s conclusions, in 1975, California State Senator George Moscone introduced Senate Bill 95 (SB95), which was signed into law that same year.  This bill made marijuana possession of an ounce or less a citable misdemeanor, punishable by a fine not to exceed $100 with no necessary custodial booking or jail time.  Possession of marijuana on school grounds was also a misdemeanor punishable by imprisonment in county jail for up to 6 months and/or a fine not to exceed $500.  Also under SB95, any furnishing, possessing or transporting of an ounce or less of marijuana was treated as a simple possession; a misdemeanor instead of a felony.  In addition, offenders under the age of 21 could have an administrative penalty of a suspended driver’s license for up to one year.  Although furnishing, possessing, cultivating, or transporting more than an ounce, and possession with the intent to sell marijuana or hash oil remained felonies, repeat offenders were treated the same as first time offenders and were not subject to any additional penalties.  SB95 also provided the purging of an individual’s record after two years ending any criminal records of individuals arrested and convicted for an ounce or less of marijuana. 

Ultimately, SB95 significantly reduced the penalties and fines against small amounts of marijuana possession laying the ground work for further decriminalization of possession and use of marijuana in California. 

 Proposition 215

By 1993, after a two decade long push, numerous legislation groups were marketing marijuana as medicine to the citizenry of California.  By 1996, Californians passed Proposition 215 (by a 55% to 45% margin), also known as the Compassionate Use Act (CUA).  The CUA allowed people with certain chronic illnesses and other ailments to grow, obtain and use marijuana for medical purposes when recommended by a physician.  The stated intent of the CUA was to “ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes…that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.”  (emphasis added) (Prop 215).  This final phrase allowed an open door system for extreme abuse of the act. 

The CUA also provided for the cultivation of marijuana for a patient or a patient’s “primary care giver”.  The CUA further defined a “primary care giver” as an individual designated by the person “who has consistently assumed responsibility for the housing, health or safety of that person.”  Although the language defining the “primary care giver” is clear in plain language, many people have used this language to form collective or cooperative medical marijuana organizations.  The misconstruing of “primary care giver” has allowed for extreme abuse of the CUA and has directly sparked a medical marijuana industry.  Subsequently, these collectives and cooperatives have become commercial store fronts in the business of selling marijuana.    

In summary, the CUA:

  1. Exempts individuals from arrest for the use of marijuana which has been recommended by a physician in California State courts;
  2. Exempts an individual or group of individuals from arrest for the cultivation of marijuana for the use by an individual, who has the recommendation of a physician, in California State courts;
  3. Exempts a physician from arrest who recommends the use of marijuana to an individual;
  4. Exempts a “primary care giver” from arrest for the furnishing of marijuana to an individual that has been recommended by a physician, in California State courts; and
  5. Does not allow endangering conduct or condone the diversion of marijuana for purposes not explicitly stated in the initiative. 

 The CUA did not provide for the sale of marijuana.  However, it did not attempt to control access of marijuana in that it did not set limits on the amount of marijuana a person or caregiver could possess or cultivate.  However, the CUA did define “primary care giver” as “the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.”  (prop 215)

In conclusion, the CUA has aided in altering the perception of marijuana from an illicit drug to a “medicine”.  The result has been a growth in public apathy toward the drug and a misunderstanding of law.  The plain language of the CUA unambiguously defines who a “primary care giver” is, but this section of the act has been severely abused.  Under both state and federal law, the sale of marijuana is illegal.  The conflicts between the CUA and the CSA will be discussed below.  

 Senate Bill 420

On September 10, 2003, California Senate Bill 420, also known as the Medical Marijuana Protection Act (MMP), was signed into law by California Governor Gray Davis.  The primary intent of the bill was to “require the State Department of Health Services to establish and maintain a voluntary program for the issuance of identification cards to qualified patients and establish procedures under which a qualified patient with an identification card may use marijuana for medical purposes.”  (SB 420)  The MMP established a card holder program and provided immunity from arrest to these card holders and their caregivers as well as an affirmative defense in California state courts for group cultivation and possession of marijuana that would be provided to individuals under Proposition 215 (CUA). 

The MMP did not provide for the sale of marijuana. The bill required the California Attorney General to develop and adopt “Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use.”  (MMP)  It gave powers to the California Attorney General to further define the term “primary caregiver” and also allowed for the office to more clearly define how cultivation would be allowed to occur.  It also authorized the Attorney General to clarify details concerning possession and cultivation limits.

However, the attempt to set limits on the amount of marijuana that a person could possess or cultivate was determined to be against the California Constitution.  In People v. Kelly, a case that was decided in January 2010, the California Supreme Court ruled that the state of California cannot impose limits on marijuana that are more restrictive than those in State Prop 215.  (Id.)  Since the Compassionate Use Act is an initiative passed by the voters of California, under California law, any restrictions on the CUA would need to be brought back to the voters through the initiative process to impose any limits not explicitly stated in that initiative. 

Insofar as California State laws are concerned, the MMP gave further immunity to authorized individual users by issuing I.D. cards.  However, there was still a dispute as to whom or what could be considered a “primary care giver” under the CUA and MMP.  Thus, the California Attorney General wrote guidelines to clear any ambiguity.

 California Attorney General Medical Marijuana Guidelines

 In Aug 2008, California Attorney General, Edmund G. Brown Jr., issued Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use.  SB420 allows for the California Attorney General to establish guidelines to clarify issues not previously defined in Prop 215 and SB420.  The key conclusions of the Attorney General guidelines were:

  1. A “primary care giver” is someone who has a relationship with a patient and has assumed responsibility in housing, health or safety of that person, not just someone who provides marijuana to that individual. 
  2. Cooperatives or collectives are closed looped systems that are democratically operated and share the income and expenses with the explicit design of not making a profit.  That closed loop system is intended to combine resources to cultivate marijuana, especially for those who could not cultivate for themselves.
  3. Most importantly the guidelines do not allow and renders illegal storefront dispensaries defined as business operations that do not comply with the intent of the law. 

 Storefront dispensaries have owners who sell marijuana to individuals who have no voice in the operations of that establishment and designate the store or store owner as the “primary caregiver”, who only provide marijuana to that individual.  These establishments are for profit operations and typically make in excess of $1 million per year.  Yet it is these types of dispensaries that have proliferated the cities and counties of California, establishing a marijuana cottage industry from the normalization of marijuana. 

 Dispensaries in Los Angles

A case study of dispensaries in the city of Los Angeles reveals a problem that has been replicated in cities and counties throughout California.  In 1996, during the passage of proposition 215, there were no known dispensaries in Los Angles.  Proposition 215 only allowed for individual and small group cultivation of marijuana for personal use.  By 2003, SB 420 established the statewide identification card program for individuals and their caregivers and still there were no known dispensaries.  In 2005, the appellate court in People v. Urziceanu (citation), ruled that while Prop 215 may not have protected collective medical marijuana gardens and activities, HS 11362.7 (SB 420) did so.   As a result, 4 known dispensaries opened in 2005.  By 2006, 98 known dispensaries opened in Los Angles and by 2007 there were 187 known dispensaries. 

 In July 2008, the city of Los Angeles declared a moratorium on dispensaries, but there were loopholes which allowed dispensaries to proliferate.  In 2009, the number reached a staggering 966 (L.A. Times Nov 2009).  A Los Angeles City Councilman stated “It’s not about creating the Starbucks of marijuana sales, it’s about creating access for people who really need it.”  By 2009, dispensaries outnumbered Starbucks in Los Angeles 966 to 840.  By June 24, 2009, the city of Los Angeles finally closed the loopholes and by January 2010 the city adopted city ordnance 181069 to regulate dispensaries which became active on June 7, 2010 allowing the maximum of 187 dispensaries. 

 The 187 dispensaries that are allowed to remain open are still illegal under California law.  The Proposition 215 ballot pamphlet, which may be used to interrupt the overall intent of a law, stated that the proposition “only allows marijuana to be grown for a patient’s personal use.”  There is no provision under the CUA or Attorney General guidelines that authorize any sale of marijuana. 

In California, it is unconstitutional to violate the voter’s intent.  Dispensaries, however, continue to proliferate in California because of the confusion of the law at the conception of dispensary openings, complacency during the growth of dispensaries within an area, and a lack of political will to scrutinize the situation within a given neighborhood which ultimately boils down to political will vs. the law.  It is not until the problems in the community become so evident through  increased crime rates, dispensaries opening up next to libraries, schools, daycare centers or places of worship, and the proliferation of undesirable advertising, that the community speaks out, which is usually too late.  In addition, problems within the court room exist due to the indifference by judges and jurors of the problem.  The prosecuting attorneys are also reluctant to prosecute due to the complexity of the cases with little hope of a conviction.  The confusion of judges, prosecutors, defense attorneys and the public all result in inconsistent outcomes.  The lack of consensus within the medical community affords some doctors the opportunity to support a cottage industry because of the extraordinary amount of money it allows them to bring in.  The lack of oversight by the medical board and the immunity from prosecution provided by Prop 215 has allowed for doctors whose exclusive business it is to sell marijuana recommendations, commonly known as “pot docs”, to typically earn over $2 million per year. What has occurred in Los Angeles is also occurring throughout all regions of California.

 Assembly Bill 1300

On August 31st, 2011, California Governor Jerry Brown signed Assembly Bill 1300 (AB 1300), which gives local governments the authority to control medical marijuana collectives or cooperatives as they see fit.  According to AB 1300, local governing bodies now officially have discretion as to the “location, operation, or establishment of a medical marijuana cooperative or collective.”  In other words, local governments cannot only tell the cooperative where and how to operate, they can deny them altogether.

 In addition, AB 1300 provides the power of enforcing local ordinances under both civil and criminal laws.  This section of the bill is really just added to cast clarity regarding the authority given by this bill.  Thus, by including a section of enforceability, there is no ambiguity regarding the enforcement of any new ordinances.  Furthermore, AB 1300 opens the door for future laws that would be consistent with AB 1300. 

Basically, AB 1300 has swung the pendulum of power in favor of local governments.  Local governments now officially have the power to adopt local ordinances that can tell cooperatives or collectives where to operate, how to operate, and, most importantly, not to operate.       

 Proposition 1449

Approved by Governor Schwarzenegger in 2010, Prop 1449 further decriminalized minor possession of marijuana from a misdemeanor to a mere infraction.  With the exception of concentrated cannabis and or possession on school grounds, any possession of an ounce or less of marijuana is now an infraction; punishable by a fine not to exceed one hundred dollars.  This decriminalization was further extended to the California Vehicle Code as regarding possession of marijuana while driving a motor vehicle.

 Proposition 19

The confusion surrounding marijuana has emboldened special interest groups to apply for the full legalization of marijuana for recreational use in California.  Proposition 19, The Regulate, Control and Tax Cannabis Act of 2010, garnered enough signatures to be placed on the ballot in 2010.  It is important to note that Proposition 19 would have done none of what its title claimed: 

  1. Proposition 19 would not have regulated marijuana as its title claimed. It is the federal government’s responsibility to regulate drugs through oversight by the federal Food and Drug Administration (FDA).  States do not regulate the manufacturing of a drug; that authority is left up to the federal government.  States can only regulate the sales of a drug and Proposition 19 did not establish a California Food and Drug Administration.
  2.  Prop 19 would not control marijuana like alcohol as it claimed because it did not establish a marijuana control board.  In California, oversight of the control of alcohol is done through the authority of the Alcohol Beverage and Control Board (ABC).  The ABC also has law enforcement officers whose sole responsibility is to control alcohol and other beverages.  Proposition 19 did not establish a Marijuana Control Board. 
  3. Finally, there were no provisions for the state to tax marijuana as claimed by the proponents of Proposition 19; it only allowed for local sales tax of marijuana if a city or county chose to regulate those sales within its jurisdiction.

 What Prop 19 would have done was legalized one ounce of marijuana for personal consumption.  It would have allowed each of the 478 cities and 58 counties to regulate and tax the sale, transportation and cultivation of marijuana within its jurisdiction.  It should be noted that this would have actually been a deregulation of marijuana distribution since the state could not have the authority to establish uniformed control from city to city or county to county.  It would also have increased the availability of marijuana within a given city and therefore increased youth use.  In addition, it would have put businesses in jeopardy with federal contracts, which require drug free work places.  It could have put the state in jeopardy of losing up to 80 billion dollars in federal contracts and education monies and it would have put an increased burden on the public health system.  Finally it would have put the state in direct conflict with federal law. 

Federal v. State Law

Under the Supremacy Clause under the United States Constitution Article 6 Section 1, clause 2, asserts and establishes federal laws made in pursuance of the constitution and treaties made by the United States with foreign nations shall be the supreme law of the land.  While nations have decriminalized marijuana no nation in the world has legalized it.  California would have been the first government to have legalized marijuana for recreational use.  This issue prompted strong warning statements from the United States Attorney General Eric Holder to state, “we will vigorously enforce the Controlled Substance Act against those individuals and organizations that possess, manufacturer or distribute marijuana for recreational use even if such activities are permitted under state law.”  In addition, the United States Director of the Office of National Drug Control Policy, Gil Kerlikowske, stated, “All options are open to the Federal Government.”  The options that exist for the federal government would be:

  1. to take California to court,
  2. withhold federal dollars; and/ or
  3. use the powers of arrest by its federal agents. 

 On November 2, 2010 Proposition 19 was defeated by a 54% – 46% margin.  However, at the time of this report there are two new initiatives collecting signatures in an attempt to get on the 2012 ballot. The Regulate Marijuana Like Wine Act of 2012 and the Legalization of Marijuana Act of 2012.  Both hope to achieve full legalization in the next election.

Case Law

After years of confusion, the Supreme Court of the United States has expanded Congress’s power to regulate commerce.  After United States v. Oakland Cannabis Buyers’ Cooperative and Jeffery Jones (Oakland), which made clear that there was no medical necessity exception to the Controlled Substance Act regarding marijuana, the courts were faced with the burden of interpreting Congress’ commerce power.  Following Oakland, marijuana collectives and cooperatives ignored the injunction imposed by the Supreme Court and continued doing business.  Their argument was that the Commerce Clause of the U.S. Constitution limited Congress to only control interstate commerce and that their operations were solely based intrastate, which would make them immune to the federal laws of the CSA.

Does Congress have power over intrastate commerce?  In Gonzales v. Raich (2005) (Raich), the U.S. Supreme Court unambiguously ruled that congress does have power over intrastate commerce.  Raich was a case brought out of the state of California into federal court regarding medical marijuana and whether federal agents had the authority to arrest the respondents and seize their marijuana under federal law.  Raich argued that their possession, cultivation, and use of marijuana were protected by the CUA, under California law, and the Commerce Clause of the U.S. Constitution limited Congress’ authority to only regulate interstate commerce.  However, the U.S. Supreme Court disagreed and explained three general categories which authorize Congress to “engage under its commerce power.”  First, under Perez v. United States (1971) (Perez), “Congress can regulate the channels of interstate commerce.”  Second, “Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce.” (Ibid).  Third, “Congress has the power to regulate activities that substantially affect interstate commerce.”  (Ibid.; NLRB. Jones & Laughlin Steel Corp. (1937)).  It is the third of these three general categories which is relevant to Congress’ control of intrastate commerce.

Medical marijuana dispensaries fall under the “class of activities” that has a substantial effect on interstate commerce.  (Gonzales v. Raich).  In Wickard v. Filburn, 87 L.Ed. 122 (1942), the U.S. Supreme Court stated, “even if (appelle’s) activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”  (Id., at 125, 63 S.Ct. 82).  “When Congress decides that the ‘total incidence’ of a practice poses a threat to a national market, it may regulate the entire class.”  (Gonzales v. Raich).

 In Wickard, the U.S. Supreme Court upheld the regulations set forth in the Agricultural Adjustment Act of 1938, which basically was designed to control the volume and price of wheat in both the foreign and interstate markets in order to avoid surplus and extremely low prices.  The respondent in Wickard argued that the surplus of wheat grown on his farm was for personal consumption and thus not subject to federal regulation because it was not intended for commerce.  The Court reasoned that although the personal surplus on respondent’s farm may have been trivial individually, the aggregated effect of others similarly situated would be far from trivial.  Thus, Wickard establishes that “Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”  (Wickard v. Filburn).    

 Furthermore, the Court explains the similarities between wheat surplus and marijuana grown for home consumption and their effects on interstate commerce by stating, “one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices.  (Wickard, 317 U.S., at 128, 63 S.Ct. 82.)  The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market.  While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety.  In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.”  (Gonzales v. Raich)

 In conclusion, although medical marijuana is authorized under state law, it is still illegal under federal law.  Thus, regardless of any bill or initiative made by any state, marijuana will continue to be illegal unless our federal government makes a change.

Conclusion

Since the 1970s, California has led the way in decriminalizing marijuana in the United States.  From the Moscone Report in the mid-1970s, to the attempt of full legalization in 2010, California has become the “pot-smoking” state in the United States.  The results of the liberal marijuana drug laws in California have helped portray the drug as harmless, if not beneficial, to the general public.  However, the fact still remains that marijuana is listed as a Schedule I drug under the Controlled Substance Act (CSA) and thus remains illegal under federal law.  There have not been any significant medical benefits to support medical marijuana under the CSA, which would eliminate the Schedule I classification.  Therefore, even if California were to legalize marijuana via a voter’s initiative, the federal government would still have the power to enforce federal law.    


Authors: John Redman and Paul Gagliardi
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