Why Prop. 19 is a crock

A state can’t tax and regulate a federal felony.

If you’re not keeping score at home, that’s the California marijuana-legalization initiative.  My op-ed explaining why it makes no sense is now on the LA Times webpage, and will appear in Sunday’s paper.  Bottom line:  a state can’t tax and regulate a federal felony.

I may vote for the proposition anyway, just as a protest against the current laws. Too bad the California ballot initiatives don’t permit you to vote for “a pox on both your houses.”

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

41 thoughts on “Why Prop. 19 is a crock”

  1. I vaguely recall hearing once (high quality citation, that) about a US state that issued coupons that allowed people to pay taxes on their illegally-gained wealth without providing evidence of their crime. I think the idea wasn't to make tax revenue, but to establish tax evasion as a separate crime from the crime that resulted in the money. Anyway, might be applicable here to the admission of a federal crime.

  2. So you would be in favor of it losing 49/51% to send a signal that it's close, but not quite right.

  3. Brian, per NORML:

    "In twenty US states, those who possess cannabis or other illegal drugs are legally required to purchase and affix state-issued stamps onto his or her contraband. The total cost of the tax is generally determined by the quantity of contraband possessed."

  4. And while I agree that corporations and their incestous boards and marketing departments are a plague, why should coop corporate entities be required for a social good like cannabis, and not unpleasant things like petroleum or fast food or whatever?

  5. Brian, I think you're conflating two things:

    1) The stamp taxes eb cites, above. These were (at least initially) applied not to legalized cannabis, but were instead contrived as one more law that those in possession of cannabis could have broken, the cannabis itself remaining thoroughly illegal despite the tax paid on it. Some of the the stamps were acquired as collectibles and curiosities.

    2) You are legally required to report all your income, and to say where it came from (this, of course, is how the feds got Capone). My (anecdotal) understanding is that the government can't use these reports against you – that if you say your income came from crime, the authorities can't use that information to prosecute you as a criminal (of course, I'd not like to test this theory, even if I had some crime-related income).

  6. In any case, whenever and however we legalize the Demon Weed, it's going to have to be at the national level (which includes modifying the anti-drug treaties) rather than state by state. Any other approach is a pipe dream.

    This national-level-legalization-only idea is the one which is far-fetched. Given the demographic power-imbalance in the US Senate (ignoring the auto-opposition from the GOP) and the antagonism towards marijuana in many of the Red States, there's no real prospect of change at the level of Congress. Also, with its stance of exceptionalism, the US won't look to others as a model e.g. pot isn't legalized or treated similar despite the 30+ years of Dutch practice, or consider the lack of nationalized health-care so far. The only path for national pot legalization is for one or more willing compartments to try it out. And the US is the big dog in the international drug policy regime, so if the Feds are willing, California can be allowed to try to make it work.

  7. So you see the feds cracking down on commercial growers and sellers, effectively turning Prop 19 into… your preferred grow-your-own policy, but you don't want voters to vote for it.

    On the law, you're dead on, but I can't see Obama administration willing to risk pissing off half the voters in CA and potentially taking a beating from the press if the DEA swoops down on hundreds of CA businesses.

  8. So back in the late 90's your argument against medical marijuana would be the same thing because it would still be illegal under federal law? Sorry Mark Kleiman, but you're an idiot. You would have denied patients in pain seeking alternate treatments because the federal government prohibits the medicine outright even though so many Californians have clearly benefited from the legalization of medical marijuana in California. You don't understand the big picture. You don't understand the policy well enough to make this argument and thirdly and most importantly you don't understand the constitutional law of the United States.

  9. I have to say, I'm reasonably convinced that marijuana does have some medical benefits, especially in restoring appetite to chemotherapy patients, having read any number of glowing testimonials, and I'm thoroughly convinced that responsibly used marijuana is not particularly dangerous (and no more so than alcohol or tobacco, in different ways), but reading comments like Shap's reminds me of how much I hate the anecdotal, tribalistic nature of Medical Marijuana advocacy. Too many of the calls for Medical Marijuana sound just like calls for Therapeutic Touch, or Homeopathy, or Laetrile, or Chiropractic, or Crystal Healing, or any of the innumerable types of "Alternative Medicine" that are exploitative and ineffective at best, and truly damaging at worst. The wide variety of poorly-sourced claims about medical indications for marijuana use is really troubling, and I really wish more was known about when it really is medically effective. Because no pharmaceutical company can patent it, none will fund such a study, but people really should be pushing harder for more government-funded research if they really want support for all these wild claims they make.

  10. OK, it's a crock. So is Gavin Newsom's marrying gay couples in San Francisco when it's clearly not recognized by the state. (Medical marijuana seems like a pretty obvious crock on a legal level, too — but kudos to Holder for agreeing not to interfere). That said, is this a move in the right direction or the wrong direction?

    I'm going to support it because I see this as the only path in my lifetime to a more sane drug policy. If it passes, and if enough other states pass similar laws, then that might actually pressure the federal government to confront those laws (federal and international) which conflict with this. In the meantime, the law might not really "make pot legal" but I don't see it as hurting anyone. On the margin it probably makes pot more available, and reduces the net collateral costs of enforcement — both of which I consider to be positive effects.

    This stuff shouldn't be illegal, all of my friends shouldn't be criminals, and if we don't pass this then nothing is going to change.

  11. The Federal law, i.e. Schedule I Cannabis, is a damned lie "by any measure of rational analysis". California is about to cast off the chains. The Feds can deal with it as they see fit. We ARE the "People of the United States" around these parts. And we repudiate the abomination that is Cannabis prohibition.

    Richard P Steeb, San Jose California

  12. @ Warren

    "Too many of the calls for Medical Marijuana sound just like calls for Therapeutic Touch, [etc.]…"

    Yes, but unlike those "treatments" marijuana does at least actually do something!

  13. Somebody (I think it was you, but I'm not sure and don't want to put words in your mouth) once said that the Federal law on marijuana should basically be: 1) States can set whatever laws about marijuana that they want and 2) It's a federal crime to to import marijuana into a state in violation of that state's laws.

    That sounds like a reasonable proposal (or at least the start of one). But, the only way you're going to get there is if enough states make it clear that they want to have their own laws concerning marijuana. That's a reason to vote for proposition 19.

  14. Brian Schmidt,

    I believe that when Mississippi was a dry state there was a state official whose job it was to collect taxes on bootleg alcohol, whether from moonshine or normal products sold illegally I'm not sure. IIRC this was a legitimate effort to collect revenue, and actually collected a lot of it. The official worked on commission, and did quite well.

  15. Hippie punching seems to be a new sport around your parts. How about a post on the Regents illegally forbidding a person with a video camera access to their meeting because he wasn't press.

  16. Hey, Shap: I don't know how much of Mark Kleiman's work you've read (or listened to on Blogging Heads), but I can promise you he isn't "an idiot." I thought smoking dope was supposed to make you more mellow than that. I don't always think Kleiman is right, but I'm very sure his views, and the arguments he presents in support of those views, are never idiotic. So disagree all you want. Explain why his arguments in the linked Op-Ed are incorrect, if you think they are. The regulars here, including Prof. Kleiman himself, would love that. But name-calling is not the style that is most effective, at least not on this site. As for constitutional law, I will agree with you that Prof. Kleiman is not an expert on that subject (as he often admits himself). Are you? (You don't offer any evidence of it.) His op-ed doesn't argue that the feds could or likely would get an injunction under the Supremacy Clause against California's enforcing Prop. 19, if it passes. (Although for the reasons he points out, it is possible that they could. State laws that actively interfere with the accomplishment of federal legal policy can be enjoined, after all. See, e.g., Gonzales v. Raich, and Rumsfeld v. FAIR; compare Gonzales v. Oregon, just for three recent touchstone precedents.) Anyway, instead of name-calling, why not outline on the merits your own argument to the contrary of his; maybe others will find it convincing.

  17. I will say what I said the last time Prof. Kleiman posted this. It's very easy for a state to legalize pot, but it can't be done through Prop. 19. Rather, just allow the state to grow and distribute pot.

    Thanks to a number of Supreme Court decisions over the years, it is very difficult for the federal government to impose limitations on state sovereignty outside the civil rights context and very difficult to enforce treaties against the states. Further, as a practical matter, I don't see the federal government raiding pot farms guarded by state police.

    That's the solution to this problem.

  18. It doesn't make any sense at all. California is deeming a federal law not illegal and the Feds ignore it, but when Arizona tries to help the Feds enforce their own law, they get in a tizzy.

  19. @dissident, please document that it is legal for you to have posted that comment. Acceptable documentation includes a kindergarten diploma or a receipt showing the purchase of a gallon of milk in October 2008. Of course you always carry such things, don't you?

  20. I don't have a dog in this fight, but I also don't see why California should have to participate in (and directly pay for) banning marijuana inside California if they think it's an unwise policy. If the rest of the country wants to ban marijuana inside California so much, let the country share the cost and enforcement.

  21. Let's have a reasonable discussion on California and then the nation legalizing

    marijuana but the Rand corp coming up with $40 an ounce for legal pot. This is

    so rediculous and just part of the normal scare tactics to vote it down. It will

    never be near this cheap. How can you quote this misinformation and write books

    and base important opinions on these lies? Isn't it about time we have an honest

    and reasonable policy and laws based on the facts of this drug? Enough of the

    massive lies being quoted.

  22. @ PeterG: I think you pretty much nailed the constitutional argument. Congress passed the Controlled Substances Act using the Commerce Clause, and the Supreme Court upheld the constitutionality of the Act in Raich, finding that Congress can indeed pass laws regulating interstate commerce even when said commerce is illicit.* And of course the Supremacy Clause means that federal law always trumps state law when either: a) Congress manifests an intent to occupy that particular field; or b) the state law conflicts with the federal law.

    @ pretty much everyone else: Criminalizing marijuana may or may not be stupid, but that doesn't change the fact that California cannot unilaterally amend federal law.

    *Interestingly, if you want to get mad about the Supreme Court's decision, you need to start with the author of the opinion in Raich: Justice Stevens. Medical marijuana was the goat that he sacrificed at the altar of the Commerce Clause in order to preserve civil rights legislation in the wake of two Supreme Court decisions that seemed to indicate that the conservative majority was on its way to eviscerating the Commerce Clause (which Congress used to pass pretty much all of said legislation).

  23. California can't nullify federal law; all they can do about federal law is try to elect congressmen and senators who want to repeal it.

    But that doesn't mean they also have to criminalize marijuana on the state level.

  24. Josh: Right. California can repeal its state marijuana laws and then devote no state (or local) resources to eradicating the crop or arresting dealers and users. What is cannot constitutionally do, so long as the federal laws stay in place, is set up a state regulatory scheme that actively interferes with the federal prohibition or (as Mark hypothesizes) affects the interstate market in a manner contrary to federal policy.

  25. If passed, legalization of marijuana in California will likely result in the Federal Government filing suit in the same manner they filed suit against the Arizona immigration law. And legally, they will be right to do so and they should win. These matters were settled in the famous legal battle Lincoln v. Davis, settled at a courthouse in Appomatox, Virgina. Federal law trumps all in this country. Federal law is the reason Bush's DOJ continued to raid marijuana clinics and, like it or not, they were legally justified in doing so. Regardless of the reasons for legalizing marijuana, the current law of the land is that marijuana is an illegal drug in most circumstances. This situation can only be changed through the Congress and Senate with a signature from the president.

  26. @Perspecticus: Exactly which part of the initiative would the court strike down? As I understand, it does not nullify federal law nor establish any regulatory structure itself.

    Congress can withhold funds for non-compliance (see the National Speed Limit), but I don't see that happening given this came from the ballot box, not the state house.

    Alex F is right. This initiative would kick start Congressional cannabis debate more than anything, which is why you should vote for it.

  27. Steve, I reckon any part in which the State has asserted authority greater than the Federal Government? For instance, declaring marijuana legal for sale and use. For example.

  28. I'm no expert, so I'm wondering, why would prop 19 bring the retail price down when medical marijuana dispensaries haven't? Especially considering that anyone openly dealing would still face the threat of federal enforcement?

  29. “Legalizing a federal felony” has nothing to do with what Prop 19 is intended to accomplish if passed. Prop 19 simply throws the whole marijuana issue back into the laps of the feds.

    There are many options when dealing with unpopular restrictions. Ignoring the legal sanctions is one way to end unfavorable or out-of-date laws, as was the case with alcohol prohibition. States with laws still on their books targeting atheists or women’s rights remain on the books while never being enforced, and for good reason. Such laws are obsolete. Reducing marijuana to the lowest law enforcement priority is a similar type of approach.

    The marijuana laws have never served any valid moral purpose. Hippies are no longer viewed as the primary enemy. The ploy that used the marijuana laws to target ethnic minorities has been officially exposed and is now part of the justification for ending prohibition. And we have Muslim terrorists to deal with now who have taken the place of many alleged domestic enemies as the bad guys du jour.

    Nationally, more than forty-percent of Americans think the marijuana laws should be reformed, and that number rises a few percent each year, which means that the feds no longer have a clear mandate to prosecute marijuana cases, except perhaps from those who are uninformed or who are deliberately misinformed by the government on cannabis issues. The feds have already conceded defeat on medical marijuana despite their bogus propaganda that said it was ineffective or unsafe. Defeating the prohibition of marijuana for recreational purposes, a drug that has proven itself to be far less harmful and socially disruptive than alcohol or tobacco, is right around the corner.

  30. Professor Kleiman —

    Your facts are fine, but they don't support your conclusion.

    Yes, the Federal marijuana-prohibition laws would remain. But why should that stop the state of California from getting out of the prohibition game?

  31. Q,

    Under P19, any adult could produce it in their own home and share with adults with no threat from state/local police and near zero threat from federal agents. Huge drop in risk, availability higher, price lower. It will bankrupt most dispensaries, which is why many are fighting it.


    If GA had an anti-adultery law on the books, would county police be obligated to enforce it? Could GA force every county to duplicate all state criminal codes in their own books? I believe the answer to be no on both counts, and similarly for states vs. the US.

    My analysis of the pros and cons of P19.

  32. Peter G, I find it funny to say the least that you would insinuate that I smoke marijuana because I support marijuana legalization. I also find it funny that you say this having condemned my name-calling of "Professor" Kleiman who argues about law and the constitution in his Op-Ed as if he were some kind of expert, which he is clearly not. I have read Raich and the dissents that go with it. I have also read Gonzales. I graduated from a top tier law school, so yes I would say I kind of am an expert with regard to constitutional law because I have read so many constitutional law cases. My point, which should be applied to any instance in which one argues about a public policy topic, is that the person arguing should know what they are talking about or just be silent. Arguing that Prop 19 is a crock because of the existence of federal law is so blatantly wrong based on policy grounds and based on constitutional grounds that it is not even worth bothering arguing against. It is so wrong that I would go so far as to say it is intellectually dishonest. Sorry for diverting your attention away from keeping your lips firmly attached to Mark Kleiman's oversized rear end.

  33. Steve, first, I am not arguing against the legalization of marijuana. I am arguing that a state can no more pass a law legalizing the sale and possession of marijuana than they can pass a law assuming authority over immigration. The concept that the intent of one law is "good" and the other is "bad" is irrelevant. The law will either be struck down at the Federal level or marijuana possession, at least, will be, at best, decriminalized at the state level.

    I guess what you are asking with your Georgia question, while not equivalent to the discussion at hand, is whether California State LEO's should be required to enforce Federal laws banning marijuana. Like the immigration question, "no" (unless, of course, Congress passed a law requiring LEO's throughout the country to detain, hold, and notify Federal officials of anyone caught with marijuana). BUT! This does not mean California can pass a law that legalizes the sale and possession marijuana any more than Arizona could pass a law opening its border with Mexico to all comers (or closing it, as the case may be).

  34. unless, of course, Congress passed a law requiring LEO’s throughout the country to detain, hold, and notify Federal officials of anyone caught with marijuana

    I am quite certain that this law would be unconstitutional under Printz.

  35. @Perspectus: You claimed the feds would file suit; my argument was simply that there's nothing to strike down in the initiative. That's the full sum of my point. P19 would have positive and negative outcomes. I'm not for legalization, if it means full-scale commercialization, but I support Mark's grow-your-own policy, which is what I believe this would become in practice.

  36. My dear Shap: Relax, dude. Implying that you use marijuana is not name-calling; it was just an attempt at humor, to keep this thing a little lighter. (I personally don't even consider it to be criticism.) My "top tier law school" encouraged reasoned discourse, not ad hominem argument. So … You say, "Arguing that Prop 19 is a crock because of the existence of federal law is so blatantly wrong based on policy grounds and based on constitutional grounds that it is not even worth bothering arguing against. It is so wrong that I would go so far as to say it is intellectually dishonest." Since I can't guess why you say so, I'd like to invite you to please give a precis of the constitutional argument you think is so obvious: please explain how it is that a state can authorize its cities and counties to tax and regulate a commodity that is illegal to produce, distribute, possess, or even share under federal law? How is it that this state law would not interfere with the federal prohibition, in violation of the Supremacy Clause? Honestly, I would like you to be right. I just can't see it, as a matter of law.

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