Jul 27 2010

California’s Prop 19 won’t keep much of anyone out of jail

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Map of the 1996 California vote for Proposition 215

Votemap for The Compassionate Use Act of 1996

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Proponents of California’s marijuana initiative wax expansively about who it will keep out of jail.  Marc Emery repeatedly mentions 31 million Californians in his endorsement of Proposition 19.  Russ Belville uses the somewhat more conservative 22.5 million Americans.

Tom Ammiano brings a glimmer of honesty to the debate with his figure of “more than 61,000 Californians arrested for misdemeanor marijuana possession in 2008 alone”.

“However, it is important to note that this statistic does not refer to any arrest demographic that the Regulate, Control and Tax Cannabis Initiative would affect,” declares Dragonfly De La Luz.

And it appears she is correct.

Nobody goes to jail in California, much less prison, over possession of an ounce or less of marijuana.  It is a $100 ticket.

Proponents of Proposition 19 generally use the words “arrest”, “jail”, and “prison” interchangeably when, in fact, these words have well defined and considerably different meanings.

An arrest can be nothing more than signing a citation and agreeing to pay a fine or appear in court.  Jails are county institutions that house inmates awaiting trial and those convicted of misdemeanors, generally sentences of 2 years or less.  Prisons are state or federal institutions used to house felons, generally sentences of 2 years or more.

Keep this in mind when proponents of Proposition 19 claim it will keep people out of prison or “reduce prison costs and overcrowding” as Yes on 19 does.  The only people it will keep out of prison are the very few commercial cultivators and distributors that will be licensed by a city or county if the initiative passes.

That is, if the feds don’t raid them.

California Health & Safety Code §11357 (b) explicitly states that if a person arrested for possession of less than an ounce of marijuana presents identification and signs an agreement to appear in court they are not subject to booking.  Further, De La Luz notes that just this past June the California senate voted to reclassify possession of an ounce or less of marijuana from a misdemeanor to an infraction.

Tom Ammiano’s figure of “more than 61,000” appears to be from Marijuana Arrests and California’s Drug War:  A Report to the California Legislature by The Center for Juvenile and Criminal Justice, which cites a figure of 61,388 arrests for misdemeanor marijuana possession in California for 2008.

Page 3 of the report notes:

In 1990, half of all marijuana possession arrests were European American (white), 60% were 21 or older, and 90% were male; in 2008, 56% were African American or Hispanic, just half were 21 or older, and 88% were male.

Page 4 of the report gives the figure of 49.4% of those arrested in 2008 as under the age of 21. And what’s more, half of those were under 18.  The actual figures cited by the report are 14,313 (23%) were under 18 and 16,039 (26%) were between 18 and 20 years of age.

Additionally, the report notes that Californians under age 21 were 3.6 times more likely to be arrested for marijuana possession than those over age 21.

Proposition 19 will most definitely not do anything for them.

In California, conviction of simple possession of more than an ounce of marijuana (with no upper limit) carries a maximum penalty of $500 and/or 6 months in jail.  It is most likely this charge, along with a few pleas down from more serious charges, that is responsible for the balance of the misdemeanor marijuana arrests cited by the report.

De La Luz has this to say about that:

This statistic refers only to possession of more than one ounce, possession by minors and possession on school grounds­—offenses which the initiative will not legalize. It does not refer to nor does it include marijuana arrests for possession of one ounce or less, because this is not an arrestable offense. Therefore, the initiative would have no impact on reducing these arrests rates.

It’s interesting to note that page 6 of the report cites 219 felon admissions to California state prisons for marijuana possession in 2008, though this is a figure no one claims the marijuana initiative will decrease and some believe it will increase.

Keep in mind that Oakland just passed an ordinance limiting the number of commercial (medical marijuana) cultivators in the city to 4, and that the 400+ mid and small size growers that currently supply the 4 licensed dispensaries there now have until January to become licensed or get out of town.

Whether or not each of these 400+ growers will have to pay a $5,000 application fee to compete for one of the four cultivation licenses is not clear.  If they do this will mean a windfall of at least $2 million dollars for the city in addition to the $211,000 cost for each cultivation license.

Proposition 19 states that “notwithstanding any other provision of state or local law”, sales of marijuana without being licensed by the local jurisdiction (the city and/or county) will be illegal and so will cultivation of more than 25 square feet.

By the way, Oakland is the home of Oaksterdamn U and Proposition 19.

To date Oakland, Sacramento, Berkeley, Long Beach, and San Jose have announced plans to tax and license commercial marijuana cultivation and distribution, and this includes medical cultivation and dispensaries.  These tax measures will require 50% approval to become law.

If these local “sin” taxes pass in November, as much as 20% of the cost of medical marijuana in these cities will be for taxes and licenses.  As the price falls, this percentage increases.

Nearly 15 years after the passage of Proposition 215, and with polls showing 81% public support for medical marijuana, Americans for Safe Access (ASA) shows only 32 California cities that have regulations for marijuana dispensaries, while 101 have moratoriums and 132 have bans.  For California counties it shows 9 with ordinances, 14 with moratoriums, and 9 with bans.

It is reasonable to assume that California cities and counties will be less receptive to commercial cultivation and distribution than they are to medical growers and dispensaries, and that Proposition 19 will end up putting more marijuana distributors and growers in jail than it keeps out.

The taxes and fees paid by the licensed commercial marijuana cultivators and distributors will be used to police unlicensed marijuana cultivators and distributors.

Another consideration is that Proposition 19 makes it illegal to possess any quantity of marijuana that was not acquired from a duly licensed source, and puts the burden of proof on the defendant.

De La Luz puts it this way:

Perhaps the most ironic piece of the puzzle is that the initiative to legalize marijuana actually makes it illegal to possess marijuana if it was purchased anywhere other than the very few licensed dispensaries in the state.[12] So if this initiative passes, better not get caught carrying marijuana you bought off your neighbor, your current dealer, or at a party; you could get arrested. And if you do buy from a licensed dispensary, better keep your receipts, because the burden of proof will be on you. Not only is this inconvenient, but it sets the industry up to be monopolized.

What’s more, if your city decides not to tax cannabis, then buying and selling marijuana in the city limits would remain illegal. You would be permitted to possess and consume marijuana, but you would be required to travel to another city that taxes cannabis to buy it.[13] This is a move towards decreased, not increased, access.

In the comments to her article De La Luz mentions that in February she asked Richard Lee how she would be able to prove to a cop that her marijuana was legally obtained and his response was, “You’ll have to keep your receipt.”

Cultivation of any amount of marijuana is a felony in California unless it is for medical use.  However, people who are convicted of growing for personal use are eligible for diversion under Penal Code 1000 if there is no evidence of intent to sell.  There are no fixed plant limits on personal use cultivation.

Therefore, any claims that legalizing 25 square feet of cultivation per residence or parcel (not per person) is going to keep anyone out of jail or prison are about as specious as the claims that legalizing possession of an ounce is going to keep anyone out of jail.

Consider the proposed California Health & Safety Code §11300:

(a) Notwithstanding any other provision of law, it is lawful and shall not be a public offense under California law for any person 21 years of age or older to:

(i) Personally possess, process, share, or transport not more than one ounce of cannabis, solely for that individual’s personal consumption, and not for sale.

(ii) …

(iii) Possess on the premises where grown the living and harvested plants and results of any harvest and processing of plants lawfully cultivated pursuant to section 11300(a)(ii), for personal consumption.

The first troublesome thing about this is that it begins with “Notwithstanding any other provision of law,” and a strict reading of that language would mean “notwithstanding” California’s medical marijuana laws, Health & Safety Codes 11362.5 and 11362.7-11362.9.  Adding to this concern is that under Section 2, B. Purposes, Item 7, medical cultivation is not exempted from the limits and regulations of Proposition 19. Medical patients in cities (not counties) are exempted only with regard to how much they may possess and consume, not with regard to how much they may “cultivate”.

Marc Emery claims “any competent grower” can produce at least a pound every 10 weeks from 25 square feet.  In the real world you’re going to get at best a quarter pound and it’s going to take a lot longer than 10 weeks.

Emery’s response to that, after noting that such a yield would require two 1,000 watt lights, carbon dioxide enhancement, and diligent gardening is:

This idea that you will just get a few ounces out of a 25 square foot space is simply more lies and spin to scare you away from supporting the initiative. Whether they know it or not, the naysayers are in league with the big commercial growers who are terrified of this initiative and want their black market protected.

One thing is for sure, the “naysayers” are not in league with the grow-light, grow-box, nutrient, additive, and hydroponic industries.  Or, for that matter, the air-conditioning and electric industry.

But what is most troubling about all this is not whether a recreational user can grow enough to supply themselves or whether medical marijuana patients find themselves limited to 25 square feet of cultivation per residence or parcel.  What is most troubling about this is that there is this huge gray area between “results of any harvest” and “personally possess … not more than one ounce, solely for that individuals’s personal consumption”.

The proponents of Proposition 19 claim this means you can personally possess as much as you want at home and the limit of one ounce applies to only how much you can take elsewhere.

What the courts will make of this is anyone’s guess.  However, since marijuana loses about two-thirds of its weight while drying, the “results of any harvest” could be determined to mean about 3 ounces of wet bud.

In addition to everything else, Proposition 19 prohibits smoking in pubic and in the same “space” (whatever that means) as anyone under 18.  It does not exempt medical marijuana patients from any of these provisions.

For many medical marijuana patients, a prohibition on smoking in public will mean that they will not be able to get on with their lives and will become prisoners in their own homes.  Contrary to what the proponents of Prop. 19 claim, the smoking of marijuana in public by medical marijuana patients is not currently illegal in California.

For all these reasons it is not likely California’s Proposition 19 is going to keep anyone out of jail and could result in many more being put there, and in prison, over marijuana.

For more info:
Why Pro-Pot Activists Oppose the 2010 Tax Cannabis Initiative – Dragonfly De La Luz | 10 Jul 10
Taking the next step for California by Tom Ammiano – New Times | 30 Jun 10
Why You Should Vote YES On Proposition 19 – Cannabis Culture | 5 Jun 10
Marijuana arrests and California’s Drug War – Center on Juvenile and Criminal Justice | Oct 09

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