Why I may vote for Prop 19

Read the arguments against it, and you want to Just Say No to them.

As I’ve pointed out, Prop. 19, the California marijuana-legalization initiative, is nonsense: it can’t do what it purports to do, because a state can’t tax and regulate a federal felony. But I’ll probably vote for it anyway, as long as I’m sure it won’t pass. Voting “No” means providing material assistance to the drug warriors – people like Louis R. (Skip) Miller, the chairman of DARE America – and their relentless disinformation campaign.

The latest example is Miller’s op-ed in the San Jose Mercury News. It’s not really worth a detailed Fisking, so I’ll offer a sample and leave the rest as an exercise for the reader:

*  “As the chairman of DARE America, the nation’s top drug abuse prevention/education program…”

Accurate, if by “top” y0u mean “most successfully promoted.” But in addition to its ethical flexibility in the use of facts, DARE has an unbroken record of negative evaluations:  no one has ever produced anything like scientifically respectable evidence that DARE succeeds in reducing drug use among its subjects, as opposed to inculcating drug-war attitudes.

*  “Marijuana is associated with physical and mental illness, poor motor performance and cognitive impairment.”

1.  Association is not causation.

2. Light use does not have the same effects as heavy use.

3. There’s no demonstration that the poor motor performance and cognitive impairment outlast the intoxication. NIDA has been searching for forty years for evidence of persistent cognitive deficits, so far without success.

*  “One of the most pernicious effects of marijuana is that it lowers inhibitions, making users engage in risky behavior — including excessive alcohol consumption and use of harder drugs.”

Fascinating assertion, backed by precisely zero evidence.

Reading this sort of argumentation – characteristic of the pro-drug-war side of the drug policy debate – gives me a strong urge to Just Say No to the people who make it.

Like it or not, in November California voters are either going to vindicate the dishonest strategy of Prop. 19’s backers – falsely promising to help resolve California’s fiscal crisis as bait for legalization – or ratify the nonsense still being preached on the other side. Since we’re currently spending loads of public money to peddle Skip Miller’s nonsense to tens of millions of schoolchildren with tax dollars, and since prohibition is currently the law of the land, I think I will give rebuking the drug warriors priority over rebuking the legalizers: assuming the polls still show the proposition losing. Having the damned thing actually pass is not a risk worth running.

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

25 thoughts on “Why I may vote for Prop 19”

  1. 1) Why would you object if the bill passed? As I understand it from your op-ed, your problem with the bill is just that it won't accomplish anything. So what's the harm if it passes? It would be a big symbolic victory for decriminalization / legalization, and it would help change the status quo bias — you'd have major political units in the US whose laws didn't back up the prohibition. If it would have no real practical effect, so what? Why care one way or the other about its practical effects? Do you foresee seriously negative consequences of Federal busts of CA operations?

    2) I don't get this "voting as expression of moral hatred" thing. No one is going to know, or care, if you voted for a proposition simply because you despised its opponents more than its promoters. And even if you coordinated so as to arrange a 49%-51% loss for a proposition, no one would then say "ah, this means people hate the drug warriors," they'd say "stupid hippies lose again, even in California."

  2. This third way line of yours is getting very old. I hear lots of complaints about the particulars of the ballot measure and nothing constructive about how to get from the present legal regime to something you prefer. As you well know, change at the federal level isn't going to happen without pressure from below, and it has to start somewhere. Prop 19 is the start, and somehow you would rather wait years (just how many?) for the perfect bill to come along that you could support. Why don't you look at it this way instead? Let's get Prop 19 passed as a catalyst to end federal cannabis prohibition, then you can rack up the frequent flyer miles testifying to the other 49 state legislatures regarding your ideas for cannabis control.

  3. I've read your essay, and you do a good job of explaining why a lot of people are unlikely to cooperate with Prop 19's tax and regulation scheme. (Because they'd just be giving evidence the feds would use to bust them.) But that's rather different from saying that California can't enact it; Government's can and do enact stupid laws all the time.

    None the less, Prop 19 is a good idea, precisely because the war on drugs is a bad idea, and the fight to undo it has to start somewhere. The fact that, once a law is passed on the federal level, reversing it locally is problematic, is exactly why most laws should NOT be federal: It locks bad policy in place, preventing it's incremental, local abandonment.

    And, of course, just as Prohibition was unconstitutional prior to the Prohibition amendment, the war on drugs, at the federal level, is unconstitutional. How shall we ever reestablish that in court, if we never challenge it?

  4. To echo Ali, what, exactly is the "risk" of Prop 19 passing? If you are correct on the legalities (and I'm not sure you are) it seems that the outcome would be…a few lawsuits and then the law is nullified. Horrors! Would you really rather see the DARE BS vindicated than a pointless, effectless, law get passed? I would really rather see the people of CA flip the bird to the drug war than endorse it.

  5. One of the most pernicious effects of marijuana is that it lowers inhibitions, making users engage in risky behavior…

    Eating cheetos and sitting on the couch puts you at risk of obesity, I guess?

  6. @ResumeMan: Mark is absolutely correct about the legalities. Like it or not, the Supreme Court has found that the Controlled Substances Act was a valid exercise of Congress's power to regulate interstate commerce (see Raich v. Gonzalez), and when a state law conflicts with a valid federal law, the state law loses.

    @everyone else: I think that there are two arguments against this bill. First, the policy argument against the bill (that Mark has made in previous entries) is that even if it had some legal effect, he would rather see marijuana implemented in a way that does not repeat the mistakes that we've made with alcohol and tobacco. Of course, given that the law would be invalid, I agree with you that the policy implications of the law are somewhat irrelevant.

    Second (and this is where I join Mark), there is something ethically unsettling about the way that this referendum has been marketed as a panacea for our budgetary woes. There is no denying that California's budget is a huge problem. We see this symbolically in the farce that occurs each year in Sacramento (try getting talented people to work for a government that annually threatens to cut wages to the federal minimum), and we see this tangibly in the way that our physical and intellectual infrastructure has been allowed to decay. So rather than selling the public a pig in a poke, progressives should be working the pass referenda that actually will fix the budget problem (which, I think, should be far more troubling to progressives than the legal status of marijuana):

    1) Knock out Prop. 13. (I admit that this is something of a pipe dream, but making the state primarily responsible for local government funding was absolutely ridiculous and based on a myth every bit as illusory as the one that underlies Prop. 19.)

    2) Knock out the 2/3 requirement for budgetary votes.

    3) Get rid of partisan redistricting.

    After we can afford to pave our roads, pay our state employees, and fund our schools, we can sit down and have a serious and honest conversation about marijuana legalization.

  7. Josh: So rather than selling the public a pig in a poke, progressives should be working the pass referenda that actually will fix the budget problem… After we can afford to pave our roads, pay our state employees, and fund our schools, we can sit down and have a serious and honest conversation about marijuana legalization.

    Well, on the same November ballot as Proposition 19 are Proposition 25 (knocks out the 2/3 requirement for budgetary votes) and Prop 20 (gets rid of partisan redistricting). Marijuana reform doesn't hurt either of these efforts. You can vote "Yes" on all three if you want. You even have the chance to vote for Props 21 (vehicle surtax to raise money for parks) and 24 (increases business' tax liabilities), which will more directly raise state revenues.

  8. Mark, of course you should vote FOR Prop 19!. We in CA have to love with the proposition situation, well then, lets pass some wild stuff! Seriously, I think the med marijuana law is bogus, the patients are mostly bogus, the whole thing is pretty silly – but so what? I approve! I think that a med marijuana card is an insurance policy against damages by your own government.

  9. No, Prop. 19, if it passed, wouldn't be harmless. It would – as its sponsors intend – set up a clusterf*ck, as quasi-legal cannabis flooded out of California to the rest of the country and DEA agents flooded in to California to shut down the growers and retailers, with lots of Tea-Party-style ranting about the Tenth Amendment. And no court ruling would reinstate the current California law; at most, the counties might be enjoined from issuing licenses to violate Federal law, but I doubt that the courts would go that far. My best guess is that the California law permitting growing and sales and the Federal law forbidding them would both be valid as the acts of two different sovereigns; following the state law would offer no protection from prosecution under federal law.

    Now there is, it seems to me, a reasonable facial challenge to the Constitutionality of the Controlled Substances Act as concerning strictly intra-state activity. But there's no doubt whatever that the interstate commerce in cannabis falls under the Commerce Clause. Moreover, the Migratory Bird Act cases are strong precedent for the treaty-power argument: that the CSA is valid as implementing a valid treaty. But in any case the CSA has in fact been upheld.

    I've made it clear what I'm for: a national-level system of non-commercial production and distribution. If anyone wants to organize a campaign for that, I'm happy to sign on. In the meantime, I reserve the right to call 'em as I see 'em, whether Warren Drugs and his friends approve or not.

  10. @AlexF: I just read both the text of 25 as well as the LA's analysis of it. I could be wrong about this, but I am pretty sure that 25 won't really do much. As it stands, 25 would rescind the 2/3 requirement for budgeting, but not for imposing new taxes. This may allow us to get through June without public spectacle, but I am curious about how exactly it would reach the deeper issue of generating revenue. I am not an expert in budgeting, and I would certainly welcome feedback from someone who is, but my gut reaction to this is that the power to pass a budget without the concurrent power to enact taxes to pay for the budget is a fairly meaningless power. Again, feedback welcome.

    Side note: The portion of the proposition that purports to rescind the pay of legislators for every day that the budget is not passed beyond June 15th seems unlikely to survive a constitutional challenge as a violation of the Thirteenth Amendment.

    On a more meta level, the point that I was trying to make is that the promoters of the proposition should call it what it really is: A symbolic message to Washington rather than a solution to our funding problems.

  11. A clusterfuck relating to drug policy? You don't say; can't have that!! Bring it on, I say. It will throw into sharp relief just how absurd our current system is.

    Fact is, a "no" vote on Prop 19 is a vote for the drug war status quo. Let's throw a monkey wrench into things!

  12. Mark, I still don't understand your objection to Prop. 19 passing. You've argued, convincingly enough for me, that the DEA would divert enforcement efforts towards busting California-legal producers in order to stop their product from being exported to other states. If this is very effective, as you've argued, no one would be willing to 'legally' produce marijuana in CA for fear of federal prosecution. So… what? What would be so terrible about that situation? Isn't it just the status quo ante?

    It seems that, given your argument, the only difference would be on the plane of ideas, so to speak: there would be a precedent for states choosing not to assist in the criminalization of marijuana. For someone opposed to marijuana criminalization, as you are, it seems like that would be an unalloyed good. Even if practical change requires changes at the federal or international level, there's a big psychological difference between something that is universally prohibited and something which is openly defended by some states, in my mind at least. That might very well lead to broader acceptance of decriminalization on the national level through a variety of mechanisms. For example, decriminalization would likely cease be a "fringe" position, dangerous for respectable figures to express, as it would after all be the official position of the State of California.

  13. Hey Mark – you've got the soapbox, and you've made it perfectly clear what you think is the best way to deal with cannabis. Since no one else seems to have taken up your banner, perhaps YOU should "organize a campaign" for "a national-level system of non-commercial production and distribution." I'll sign on with you and together we will change the face of drug policy… albeit over another thirty years. Who even cares how many grotesque murders there are in Mexico, how many hectares of public forests are destroyed, or how many minorities are thrown unecessarily in the slammer in the meantime?

    Oh, and another thing, I'm tired of reading "chronic zonkers" too. No one but you uses the term. It makes you sound like you think Doonesbury is still cutting edge.

  14. The hippies like it. That's Mark's objection. Never mind that eventually, the government may do something about changing the federal drug laws with respect to marijuana and at that point, state laws will need to be repealed. What order that happens in is not important.

  15. "Side note: The portion of the proposition that purports to rescind the pay of legislators for every day that the budget is not passed beyond June 15th seems unlikely to survive a constitutional challenge as a violation of the Thirteenth Amendment."

    That's silly, I grant you the courts are willing to uphold some remarkably lame arguments in order to give the political class what they want, but that one is a stretch even so. Nobody is required to be a member of the legislature.

  16. Prop. 19, if it passed, wouldn’t be harmless. It would … set up a clusterf*ck, as quasi-legal cannabis flooded out of California to the rest of the country and DEA agents flooded in to California to shut down the growers and retailers, with lots of Tea-Party-style ranting about the Tenth Amendment.

    To put this harm in perspective, if Prop 19 doesn't pass, over 50K Californians will be introduced into the criminal justice system for generally harmless cannabis use and distribution every year.

  17. First of all, there is no conflict with federal law presented by Prop 19 that wasn't already brought up with the passage of Prop 215 and SB 420. All of them legalize, at a state level, activity that remains a federal crime. The idea that Prop 19 presents some unique and untenable clash with the feds really makes no sense in light of the past 15 years.

    Also, this isn't some petty stupid "drug warriors vs. legalizers" clash for the title of Most Annoying Advocates. This is about a choice between maintaining prohibition and moving in a new direction. Are there imperfections and stumbling blocks along that new path? Almost certainly. But given that the path of continued prohibition is a freaking radioactive minefield, the "problems" with Prop 19 seem almost laughably insignificant. Forget about who is making which argument, and spend two seconds looking at the arguments themselves. The choice becomes pretty clear, and it has nothing to do with meaningless "protest vote" crap. This proposition deserves to win because it represents an improvement over the status quo, pure and simple.

  18. For those of us who have followed Mark for some time, this post is pretty significant. Traditionally, Mark has equated the drug warriors and the drug legalizers. Mark believes (reasonably, if maybe not correctly) that both sides are equally woolly-minded. But he has traditionally ignored the screaming bad faith on the part of drug warriors, which is not shared by the legalizers. I never found this reasonable.

    In this post, he finally seems to be picking sides. He's not picking which team he would rather play with (i.e., none of the above), but he is picking which of the two teams is less objectionable. Good for Mark!

  19. Considering the 80 year construction of an edifice of lies and the bureaucratic entrenchment of such agencies as the DEA, how can you blame legalization advocates for stressing bottom line economic benefits, even to an exaggerated extent. This should have happened prior to the passing of the Controlled Substances Act. There should never have been a DEA. Or it should have happened in the late 70s. It is an uphill battle to a very significant extent! Prohibitionists have never played fair or honestly or even nicely.

    For the largest most populated state to push back this hard is going to cause enormous problems for the Feds. Legal cannabis is going to be far to big for the Federal agencies to cope with. The vast majority of drug law enforcement is done by state and local

    LE agencies. The Feds currently buy their loyalty with targeted grants. Local Sheriff Depts around CA are quite dependent on these payoffs. Once legal in the state, ALL cases initiated by local agencies will have to be taken up by Federal prosecutors in Federal court or be dropped. State Superior courts will no longer be the workhorse meat grinder they are now. The Federal system cannot possibly take on that amount of cases for one particular class of "crime". Even if they go after the very biggest targets, it isn't going to succeed in deterring the huge and growing number of small players. Once OR, WA or CO do the same it's only going to make the Feds position even harder to maintain.

    The reason this is necessary is that at both State and Federal levels, both political Parties are too fearful to lead and too fearful to dismantle the huge entrenched drug war institutional machine that has been built over the past 60 years. Not only that but we exported the whole thing worldwide and created a string of treaties creating a worldwide drug war. It has proven to be simply far too daunting for fearful, ignorant, and corrupt politicians to even think of unwinding the whole thing. It's the kind of 180 that has no precedent. Alcohol prohibition was in the US only, which made it far easier to end from the top down, which would be preferable as far as smooth transition goes. No, this is going to have to be an ugly, messy slog from the bottom up.

  20. One has to be a blistering idiot to look at the current war on some drugs status quo and to think that prohibition is delivering anything remotely resembling sanity to our society. We have decades of proof that prohibition is a complete and utter failure without even considering how antithetical these laws are to a society that claims to be free.

    Seriously, are there any other laws which almost 50% of the people think should be changed? Do the peoplke that go out on the highway and break the speed limit laws regularly even support doing away with speed limits? How about any other laws that even 10% of the people think should be repealed? It is just people that enjoy consuming cannabis as an alternative to the poison of liquor as that numers only about 10% of the population according to US Gov't guesstimates of actual cannabis use. The plain fact of the matter is that it isn';t anybody's business what happens in my private home which does not include any non-consensual participants. Indeed, I am a non-consensual participant in the idiocy of the war on some drugs and that in and of itself means that these laws are wrong.

    Get off your high horse and MYOFB for a change. As long as you idiot drug warriors continue to perpetrate this fraud on the American public I will do anything that is within my power to subvert your insanity. Punishing people for what you think they might do is simply wrong, wrong, wrong. It's amazing that there are those enemies of freedom that have the misguided notion that they're doing the right thing. I own my body, not you, not the government, and not the religionists who believe in the Big Fairy Tale. Your idiocy is proven unworkable by decades of evidence and the insistence that we should do anything but throw away this garbage of prohibition. Your choices are to continue to try to force people to do your will or to believe that people own themselves and their lives and should make their own decisions. There is no way you can call yourself a friend of freedom and support foisting your will onto others.

  21. There are people who live in the woods and grow your weed. I've been documenting Northern California marijuana growers since 2005 and our film has won many awards. It's currently available on HULU for free!

    In an attempt to spread the word about Proposition 19 and legalization, we encourage people to first watch the one hour movie and tell us what you think. Feel free to review, blog and embed "The Green Rush" everywhere and share it with anyone who wants to see what it's like to live in fear of persecution, even though they are supposed to be protected as patients by the state. Thanks for this article and all you do.

    Casey Casseday

    Producer, The Green Rush
    http://www.greenrushmovie.com

    HULU:
    http://www.hulu.com/the-green-rush

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