A Federal-State Law Inconsistency Shouldn't Stop Californians from Legalizing Marijua

[Ganjarden]

The law is the law. If we unquestioningly accepted that maxim, imagine where we would be today. Jim Crow would be alive and well, rivers and skies would be polluted, and women wouldn't be allowed to vote.

Yet such is the mindset of many of those who criticize Proposition 19, the marijuana regulation and taxation initiative on the November ballot. In his July 18 Times Op-Ed article, UCLA public policy professor Mark A.R. Kleiman declares that state legalization "can't be done." He points out, correctly, that if the initiative is successful, the federal marijuana prohibition laws will remain in place. What he assumes, incorrectly, is that federal agents will swarm into California, busting farmers and arresting distributors and shopkeepers, to say nothing of the garden stores that sell them equipment and supplies, the accountants who do their books and the municipal tax officials who delight in assessing and collecting the new tax revenues.

Kleiman might well have uttered, "The law is the law."

But the law is neither absolute nor infallible, and that's why Californians can — and should — legalize, regulate and tax marijuana-related commerce.

The federal-state dynamic concerning marijuana is not complicated. Under our system of federalism, both the states and the feds may prohibit commerce in marijuana, but neither is required to do so. Similarly, during alcohol prohibition (1920-33), commerce in alcoholic beverages was prohibited not only by federal law (the Volstead Act) but by the laws of most states. In 1923, New York repealed its state prohibition laws, leaving enforcement, for the remaining 10 years, entirely to the feds. California voters overwhelmingly did the same thing in 1932, one year before national prohibition was repealed.

Let's think this through. If Proposition 19 passes, two important balls roll into the feds' court. The first is that the sole responsibility and expense of enforcing marijuana prohibition will be shifted to them. After Nov. 2, marijuana "offenders" could be arrested only by federal agents, prosecuted only under federal law, and sentenced only to federal detention.

If the feds undertook this, cases involving simple possession cases and small-time marijuana businesspeople, usually relegated to state courts, would flood federal courthouses. But even with a drastic increase in funding for federal enforcement, such activity would barely put a dent in California's marijuana trade, and would fail to stifle California's policy change, as the federal government has failed to do since the first medical marijuana laws were passed 14 years ago. Moreover, justifying the invasion into a state's province to undermine the will of the voters at such great expense to taxpayers would be highly questionable, especially in the current economic climate, not to mention a political climate that is at best lukewarm on prohibitionist policies.

The second ball is even more significant. Voter approval of Proposition 19 would shift to the feds the responsibility and burden of justifying marijuana prohibition in the first place. Now, the Washingtonians who have never questioned decades of anti-pot propaganda can explain to the people of California why we cannot be trusted to determine our state's marijuana policies. Let them endorse the prohibition laws' usefulness as a tool of oppressing minorities. Let them celebrate how minor marijuana violations cost people their jobs, their housing, custody of their kids, and entrap them permanently in vast criminal justice databases. Let them justify the utter hypocrisy of the legal treatment of alcohol and tobacco, as compared with the illegal treatment of marijuana. Let them tell us how many more people will have to be prosecuted and punished before marijuana is eradicated, how much that will cost, and where the money will come from.

Proposition 19's success in November would put the feds in a quandary, yes, but it is a quandary of their own making. Unlike alcohol prohibition, which required a constitutional amendment, Congress could fix this easily with a simple amendment to the Controlled Substances Act allowing conduct legal under state law and respecting the right of states to regulate and tax the cannabis industry. After all, determining what is a crime is traditionally handled at the state level; indeed, federal prosecutions of drug possession make up a miniscule portion of overall drug arrests.

Instead of hewing to a misguided and unworkable federal hegemony in this area, encouraging innovation at the state level would be a more rational federal policy. And to be clear, legal scholars have long disagreed with Kleiman's conclusion that the feds must and will intervene to try to quell state action in this area.

States need not shrink from countering federal policy on marijuana. California can show leadership in driving needed reforms, as it has before. In other words, the law need not be the law if you're willing to stick your neck out. Cautious academics and politicized public employees will always embrace the status quo, joined by risk-averse politicians who misconstrue a lack of constituent "noise" on this issue as satisfaction with current law, not fear. But voters know better.

Not only can Californians regulate and tax marijuana, we should.

Hanna Liebman Dershowitz, an attorney in Los Angeles, is a member of the Proposition 19 legal subcommittee.


NewsHawk: Ganjarden: 420 MAGAZINE
Source: Cannabis Culture
Author: Hanna Liebman Dershowitz
Contact: Cannabis Culture
Copyright: 2010 The Los Angeles Times
Website: A Federal-State Law Inconsistency Shouldn't Stop Californians from Legalizing Marijuana

[GanjaAL2]

For me I am voting no because it will not keep people out of jail as they claim nor does it free the ones that are in jail.

This is the only thing that is keeping me from voting yes.

[tgreen420]

Right...and the current laws DO keep people out of prison. Ummm...something is better than nothing. The precedent needs to be set. By voting yes, the momentum toward national legalization starts. And the law can be adjusted to address the issues of some of the more strict parts of the bill and the eventual release of people who would be in prison for something that is no longer a crime.

[GanjaAL2]

Sorry but you will not win the federal government, conservitive states and the bible belt states with prop19. If anything it may stop the movement all together. I used to be a hard core conservitive and it was the mmj laws that changed my position... am I now against rec smoking... NO. But I know how they think and what they do on the conservitive side.... you want to make marijuana legal in the USA...keep pushing the MMJ laws.

Again people are going to jail in record numbers and prop 19 will not stop that...why???? because they are going to jail for possesion of more that an oz. When the concervitives see that it will not stop that... good luck getting even mmj laws passed in other states.

[tgreen420]

Originally Posted by GanjaAL2

Sorry but you will not win the federal government, conservitive states and the bible belt states with prop19. If anything it may stop the movement all together. I used to be a hard core conservitive and it was the mmj laws that changed my position... am I now against rec smoking... NO. But I know how they think and what they do on the conservitive side.... you want to make marijuana legal in the USA...keep pushing the MMJ laws.

Again people are going to jail in record numbers and prop 19 will not stop that...why???? because they are going to jail for possesion of more that an oz. When the concervitives see that it will not stop that... good luck getting even mmj laws passed in other states.

Well, at least you have a better reason for voting no from what I have heard so far from others. And that is true, I don't know what goes on in the mind of a rank and file conservative. Thanks for your thoughts!

[tgreen420]

Oh, and yes, I believe that once legalized, people should have the right to carry grocery bags full of it if they wanted. By limiting it to one ounce, in my opinion, still makes the possession and use look like something...dirty. Honestly, it isn't real legalization but a very liberal decriminalization.

If it doesn't pass, I'm sure cannabis will soon be re-classified under the Controlled Substances Act anyway and the move toward full legalization will be a lot easier because public opinion about cannabis will be more positive. I do know this about many conservatives: if they believe they came to a decision about something on their own, they support it. But if they feel their hand was forced by the "liberal media" or the "neo-socialists", they will fight with all they have against it. But I digress...it certainly won't be the end of the cannabis legalization movement. We would just go about it in a different way.

I still hope it passes. And it's a good thing we have dissenting points of view, because if Prop 19 does pass, we will need good minds and different viewpoints in order to refine it. It will need some work in order for it to reduce the harm involved in possessing, cultivating and distributing cannabis. I'm sure everyone can agree on that.

[Odin]

Originally Posted by tgreen420

Right...and the current laws DO keep people out of prison. Ummm...something is better than nothing.

Actually I don't believe something is better than nothing. I have a lot of qualms about Prop 19 and I think voting this bill down is the right thing to do, because it will lead to revamping of the Proposition, which is definitely needed. I don't claim to know a lot about writing bills, propositions, and law making. However it seems to me that it is easier to create or modify a law that has yet to be passed, than it is to rework a law that already exists.

I would rather see Prop 19 defeated, reworked, and made more realisitic. No posession or growing limitations would be a great start. I'd rather vote yes on the right law, not the "well its better than nothing" law.

Also in regards to the article, I don't see why the Feds wouldn't vamp up their efforts to prosecute more people in CA if Prop 19 passes. They have been doing it regularly since Prop 215 was passed in 1996. Just means more bait for the Feds, thats all.