Prop. 19 and decriminalization

The “No on 19” forces are now claiming that the initiative’s legalization of cannabis possession doesn’t much matter, since it has already been decriminalized. That’s not necessarily so.

The “No on 19” forces are now claiming that the initiative’s legalization of cannabis possession doesn’t much matter, since it has already been decriminalized. That’s not necessarily so.

While the commercial-production provisions of Proposition 19 will face legal challenges, the provision the legalization of the possession of less than an ounce of cannabis will not. Possession would remain a federal offense, but Californians not on federal land would be virtually immune from any legal penalty. The same applies to the cultivation of a 5’x5′ plot for personal use.

Even most supporters of cannabis prohibition can’t work up much enthusiasm about arresting people for just using pot. It’s been fairly amusing to hear the loud insistence of law-enforcement opponents of Prop. 19 that they’re not really enforcing the possession law now, as if keeping an unenforced law on the books were a feature rather than a bug.

The Gubernator just signed a decriminalization bill. Under the new law, possession of up to an ounce of cannabis is an infraction – like overstaying your time at a parking meter – rather than a misdemeanor. It will result in a ticket, rather than a custodial arrest, and a maximum fine of $100, and no criminal record will be generated.

Does this mean less hassle for pot users? Not necessarily: it depends on the behavior of local police, and therefore may vary from one jurisdiction to the next.

Possession arrests are already infrequent, except in connection with other offenses. But that’s partly because a custodial arrest is a fairly expensive process from the viewpoint of the criminal justice system. By contrast, writing tickets is cheap: probably a source of net revenue. In one of the Australian states, decriminalization actually increased the number of cannabis possessors going to jail; there were far more tickets than there had been arrests, and some of the people getting the tickets didn’t pay the fine and went to jail for that.

I continue to think that legalization of possession and production for personal use – and, I would add, production by small consumer-owned co-operatives – is the right way to manage cannabis: it would largely eliminate the (large) black market as well as cannabis-related law enforcement without creating a large industry devoted to promoting and sustaining drug abuse. (People who use drugs but do not abuse them do not spend enough to be valuable customers.) So if I were sure that the courts would forbid California’s counties and municipalities from licensing growing and retailing under Prop. 19, I would regard the resulting situation as close to optimal. But getting there by passing a law that the courts later strike down is rather a Rube Goldberg approach to what ought to be a rather straightforward issue.

Footnote In writing (and speaking) so much about Prop. 19, I’m following my judgement about what people are interested in rather than my judgement about the significance of the issue. In my view, no change in cannabis policy could match the importance of reducing hard-drug use by felons under community supervision via HOPE-style supervision, or reducing violence in Mexico and undercutting the Taliban in Afghanistan by ending the attempt to solve our national drug-consumption problem abroad.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

8 thoughts on “Prop. 19 and decriminalization”

  1. > But getting there by passing a law that the courts later strike down is rather a Rube Goldberg approach to what ought to be a rather straightforward issue.

    At what point do we conclude that the Rube Goldberg approach is the only one that can work? Seriously, if we had any leadership at all on this from Democratic politicians there would be some grounds for hope of an eventual legislative solution, but there's none. It's been clear for 30 years that cannabis doesn't even properly fall within Schedule I, and the only result from that state of affairs was that the CIND program for cannabis was shut down. The Feds won't even follow their own law when it comes to cannabis. The right question is, would society be better off trading the inevitable problems from Prop 19 for the current state of affairs.

    > In my view, no change in cannabis policy could match the importance of reducing hard-drug use by felons under community supervision via HOPE-style supervision, or reducing violence in Mexico and undercutting the Taliban in Afghanistan by ending the attempt to solve our national drug-consumption problem abroad.

    Well, yeah, those are all good goals which also involve reducing our reliance on coercion to address problems associated with drug use. Isn't it also a high priority to stop using coercion altogether when addressing an issue that isn't really even a problem compared to those?

  2. Bear in mind, you are constantly undervaluing the issues of personal freedom here. Reducing the likelihood that pot users get arrested is extremely good for pot users. Challenging the federal government in ways that may force it into fights that it will lose is, in the long term, extremely good for pot users.

    The issue isn't simply how to "manage" cannabis. The issue is that people who want to enjoy themselves by using a recreational product that doesn't harm anyone else but does offend others' morality are prohibited from doing it. And not only that, they are prohibited from taking advantage of the capitalist system and the advantages (in terms of low prices and high quality) that a system of mass manufactured, advertised, and marketed marijuana would provide them. We are, simply put, denying to pot users a freedom that we grant to many other people who do things that some find morally offensive. The logic of pot laws is the logic of the Alabama ban on the sale of sex toys. Note, by the way, that it is perfectly permissible to make your own sex toy in Alabama. That doesn't make the law any less unfair.

    You have to start with personal freedom. Yes, if there are ways to reduce addiction that are consistent with personal freedom, we should do that. Look how much success we have had with tobacco over the last couple of decades. But it must start with "why are people not allowed to go and buy this product on the open market just like any other pleasurable tool or activity?".

  3. You can't "start with personal freedom", because fundamentally nobody can agree on the appropriate contours of personal freedom. All legislation curtails personal freedom.

  4. In a free society, disagreement over the contours of personal freedom doesn't matter, because you aren't allowed to use the state's guns to force people not to do things you disapprove in.

    Now, if you are saying you would rather live in an unfree society, that's fine. Move to one. But America is supposed to be better than that.

    As I said, the issue is STARTING with freedom. Where actual harm (rather than jealousy that someone else is having fun) is at issue, you can restrict freedoms. But pot is like skydiving; users might be harming themselves, but they aren't harming others.

  5. >In writing (and speaking) so much about Prop. 19, I’m following my judgement about what people are interested in rather than my judgement about the significance of the issue. In my view, no change in cannabis policy could match the importance of reducing hard-drug use by felons under community supervision via HOPE-style supervision, or reducing violence in Mexico and undercutting the Taliban in Afghanistan by ending the attempt to solve our national drug-consumption problem abroad.

    Sometimes it seems like a tempest in a pot bag. What is the big deal, exactly? But that is really the point. Cannabis has become a symbol all out of proportion to its "actual" properties. OK, so the Shafer Commission said that too, a million years ago. Mark, you thought the Feds cared about hoasca, but that is still something exotic. You've seen how crazily they've fought Carl Olsen and others over this plant. Let's not be conspiratorial (at least more than is warranted), but let's recognize that the war on drugs has largely become a propaganda effort to keep people thinking that cannabis contains sulphuric essences from the depths of hell. If we were to legalize recreational cannabis, the Feds might have to have a mature conversation about the CSA.

    And anyway, how can you legalize a thing and also forbid commerce in it?

  6. Legalizing something and forbidding commerce in it is fairly easy. There may be a first Amendment right to tell your story, but there is no such right to escape taxation on the money you spend telling your story.

    A tax exemption for advertising should be the exception, not the rule, and this is especially true for any kind of drugs, including tobacco and alcohol. A lot of our problems with large national firms driving out small local firms would be solved by leveling the advertising playing fields. Doctors could reassume their role of telling patients what drugs are available, instead of vice versa, and, who knows, maybe s few people with substance abuse issues would find their problems eased if there were less advertising.

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