Prop 19: The Day After


However Californians vote on Nov 2, pot policy in the state will still be in a legal haze

One week from tomorrow, the nation's most populous state may decriminalize marijuana. Polls indicate that California's Regulate, Control and Tax Cannabis Act of 2010, otherwise known as Proposition 19, is supported by between 39 and 44 percent of likely voters.

But even if the proposition becomes law, California's 338 separate police departments and 58 county sheriffs are likely to have the final word.

Several of the state's law enforcement authorities, such as Los Angeles County Sheriff Lee Baca, have already signaled they will continue to enforce federal laws against possession and cultivation of marijuana–no matter what happens.

“You're going to have massive confusion,” predicts Rodney Jones, Chief of Police in Fontana, California, a city of 200,000 located 50 miles east of Los Angeles.

Jones did not say how his own department would respond if the proposition passed, but Martin Mayer, general counsel for the California Police Chiefs Association (CPCA), says there are precedents for different enforcement approaches. Laws against fireworks, he points out, vary widely across the state. In some cities and countries they are a legal and taxable commodity, as marijuana would be if Prop 19 passes; but in others, fireworks are illegal.

Nevertheless, fireworks don't push the same political buttons that marijuana does. Decriminalization of marijuana would not only put California at odds with national anti-drug policy but would challenge decades of moral strictures that consider pot the first step in a downward slide of addiction to harder drugs.

Either way, California police are sworn to uphold the laws of the state–and may find it difficult to rely on federal drug law to make local arrests. They may, however, find allies in local prosecutors.

“If a judge dismisses a marijuana case because of Prop 19, a prosecutor could appeal saying that the law the determination was based on is unconstitutional,” says Mayer.

Waiting on the Feds

Until recently, the Obama administration avoided weighing in directly on Prop 19. But on October 13, Attorney General Eric Holder, in a letter to a group of former administrators of the Drug Enforcement Administration, said that “regardless of the passage of this or similar legislation, the Department of Justice will remain firmly committed to enforcing the Controlled Substances Act in all states.” Holder was responding to a letter the group of nine had sent him on August 24, expressing their “grave concern” over Prop 19.

But what would such a federal crackdown actually look like?

Pretty much everyone agrees that Prop 19 would render California in blatant violation of the federal Controlled Substances Act, but no one seems to envision thousands of federal agents descending on the state to drag pot smokers–even those who take advantage of the new law and begin growing their own weed–from their homes.

Even outside California, support for legalization is at an all-time high: according to a 2009 Gallup poll, 44 percent of Americans favor dropping criminal penalties for the drug, up from just 12 percent in 1970. And although advocates on both sides debate everything from whether decriminalization will turn more kids into potheads, to how legal domestic cultivation will impact Mexican drug cartels, to whether taxing the state's number one cash crop could help it climb from beneath a massive deficit, there is no doubt that the national conversation about pot has evolved. Last week former Surgeon General Joycelyn Elders advocated legalizing marijuana for recreational use, and when the Los Angeles Times and other national publications cover marijuana they now often cover it as a lifestyle issue – focusing on growing the herb and intergeneration usage in families–instead of a health or law enforcement one.

Still, Asa Hutchinson, former administrator of the DEA, and a signatory of the letter to Holder, says that he and his colleagues hope the administration will sue the state of California to prevent the initiative from taking effect, just as they did in the wake of Arizona's controversial immigration law.

“The logical first step is for the Department of Justice to file suit against the state,” says Hutchinson.

A key reason would be to head off similar marijuana decriminalization moves by other states. “I don't imagine the feds wanting to have a patchwork of enforcement policies, all depending on the nuances of each state,” Hutchinson says.

And such a patchwork is indeed a possibility. In an email to The Crime Report Ethan Nadelmann, founder and executive director of the Drug Policy Alliance, indicated that pro-decriminalization groups are ready for a long national fight.

“Win or lose on Prop 19, the plan is the same,” writes Nadelmann, “which is to put the issue on the ballot wherever polls show a reasonable majority of the electorate in a state in favor, in those states that have the initiative process, and where elected officials are unwilling to move forward…economics, demographics and principle are all on our side.”

Indeed, if Prop 19 passes, Representative Peter Buckley of Oregon told The Crime Report he will introduce a similar measure in his state. And, according to a recent Wall Street Journal story, Democrats across the country are watching this race closely for just that reason: if marijuana gets Democrats to the polls (the same way gay marriage drives Republicans to vote), the party might support similar initiatives in 2012.

That may be why Holder's letter made no specific promises of a lawsuit. In fact, in contrast to the passionate tone of the original DEA heads' letter, it was a markedly tepid response.

“I don't think the feds wants to get involved in this,” says Mayer. “But they're being pushed. And I think Holder would look foolish after making that statement if he doesn't challenge the law.”

Pot policy in flux

In some ways, California has already blurred the national template over drug policy. In 1996, the state approved Proposition 215, which legalized pot for medical use. In the nearly 15 years since, dispensaries have either thrived or been shuttered depending upon their locations. In Oakland, where dispensaries blend in among office buildings, the citizens even levied the nation's first tax on the weed in 2009 , and the city council recently approved a measure allowing for industrial cultivation of marijuana.

And regardless of the outcome of Prop 19, California has already moved the goalposts on marijuana policy. On September 30, Gov. Arnold Schwarzenegger signed a new law downgrading possession of less than an ounce of marijuana from a misdemeanor to a simple infraction, which, like a traffic ticket, carries only a $100 fine.

Some have argued that the move by the governor, who opposes Prop 19, erases the urgent need for legalization. However, supporters claim decriminalization would save millions by allowing police to concentrate on more serious crimes.

But police say they aren't really spending resources on petty pot offenses anyway.

Lt. Jarrod Burguan of the San Bernadino Police Department told The Crime Report that even if Prop 19 passes, he doesn't anticipate officers in his department changing the way they police, at least not right away.

“There are likely to be court challenges,” explains Lt. Burguan. “Once those are settled we will probably get specific guidelines from the Attorney General on how we should enforce the law.”

Deputy Chief Bill Blair of the Long Beach Police Department also says his department will likely take a wait-and-see attitude. “You're breaking now ground with this,” says Blair. “We're going to have to come up with guidelines for how officers deal with circumstances” such as entering a citizen's house or searching a car and finding marijuana. But, Blair adds, his officers are already walking a fine line since September 30.

Much, says Blair, depends on who wins the race for attorney general. Both candidates, Steve Cooley and Kamala Harris are officially opposed to Prop 19. In a recent debate, Harris was non-committal when asked to give details about her response should the measure pass, but Cooley was clear, saying he believed it was “unconstitutional” and “preempted by federal law.”

Until then, Lt. Burguan says, officers will probably keep “doing what they're doing” when they stop civilians who have less than an ounce of pot: “We just write a ticket and send them on their way.”

But police encounter pot constantly, and according to pro-Prop 19 advocacy group NORML, there were more than 78,000 arrests for a marijuana offense in California in 2008, the largest number since 1976; just over 61,000 were for misdemeanors.

And there are plenty of unsolved issues. Walt Tibbet, chief of police in Fairfield, California, a city of 100,000 about 50 miles northwest of San Francisco, worries that if Prop 19 passes his deputies will have their hands tied when it comes to marijuana-related DUIs. Unlike with alcohol impairment, which can be accurately measured on the spot with a breathalyzer, marijuana use can only be as accurately detected by a more invasive blood or hair sample test, which can't exactly be performed curbside.

“The problem with this initiative (is) it sets no standards” for impairment, says Tibbet. “We're concerned about bus drivers and pilots. What will be our response? How can we maintain a drug-free workplace?”

Adding to the uncertainty is the potential tax windfall that legal marijuana represents for California's economically stressed-out officials. The California Police Chiefs Association's Mayer notes that “political considerations” may determine whether local prosecutors decide to push the pot button. In counties such as Mendocino, Humbolt and Alameda, marijuana is a lucrative cash crop, and Mayer doubts prosecutors there will aggressively force the issue. “And,” he adds, “if the DAs stop prosecuting, eventually the police will stop making arrests.”

Which is precisely the outcome Prop 19 advocates are hoping for. But it will be up to California voters to set it all in motion.

Julia Dahl is a New York-based freelance writer and contributing editor to The Crime Report.

Photo by Dustin Sacks via Flickr.

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