On October 10, 2010, there was an article on CBS News by Bill Whitaker entitled "Legalizing Pot May Take More Than a Vote in CA", with the subheading "Even if Proposition 19 Passes in Calif. and Marijuana is Legal, the Federal Government May Step In."
Whitaker said even if Prop 19 passes, "the federal government almost certainly will challenge it."
Denise Davis of the California Chamber of Commerce, which has run radio ads against Prop 19, told CBS News that Prop 19 opens the door "for the ability of employees to smoke pot at work." Whitaker said "employees couldn't be fired for smoking pot unless employers prove that the drug impaired job performance."
Whitaker said even if Prop 19 passes, marijuana will "still be illegal under federal drug laws", and likely be challenged in court, which "means the whole controversial issue could just go up in smoke."
California passed Prop 215 in 1996, but marijuana remained a controlled substance under federal law. Years later there was a case, Gonzales v. Raich, (originally named Ashcroft v. Raich since Ashcroft was the US Attorney General when the case began). On August 15, 2002, DEA agents and officers from the Butte County Sheriff's Department destroyed all 6 of Diane Monson's marijuana plants since marijuana was and still is a Schedule I drug under the federal Controlled Substances Act (as well as California Health and Safety Code as far as I know). Angel Raich of Oakland, CA, Diane Monson of Oroville, CA and 2 anonymous caregivers sued the government on October 9, 2002 for injunctive and declaratory relief to stop the government from interfering with their right to grow and use medical marijuana, claiming that the Controlled Substances Act was not constitutional as applied to their conduct. They said that enforcing the Controlled Substances Act against them would violate the doctrine of medical necessity, the 10th amendment, the 9th amendment, the Due Process Clause of the 5th amendment, and the Commerce Clause. The US Supeme Court rule on June 6, 2005 that Congress may ban homegrown marijuana even if states have approved medical marijuana, under the Commerce Clause of the US Constitution.
On October 15, 2010, CNN reported that Attorney General Eric Holder said in a letter than the federal government will continue to enforce federal marijuana laws in California even if Prop 19 passes. The letter said "Regardless of the passage of this or similar legislation, the Department of Justice will remain firmly committed to enforcing the Controlled Substances ACT ("CSA") in all states." The letter said "the Department of Justice strongly opposes Proposition 19." CNN stated that Holder's letter was a response to an August 24 letter from 8 former directors of the DEA urging the White House to block Prop 19 if it passes, urging Holder to use the "supremacy clause" to pre-empt such laws. Holder's letter said "the Department is considering all available legal and policy options in the event Proposition 19 is enacted."
Even if Prop 19 passes on November 2, 2010, cannabis will still be a Schedule I drug under the federal Controlled Substances Act. And I'm not a lawyer, but it appears to me that Prop 19 itself doesn't even reschedule cannabis in California, it makes no mention of scheduling.
California Health and Safety Code Section 11054 (a) currently says "The controlled substances listed in this section are included in Schedule I."
subdivision (d) says:
(d) Hallucinogenic substances. Unless specifically excepted or
unless listed in another schedule, any material, compound, mixture,
or preparation, which contains any quantity of the following
hallucinogenic substances, or which contains any of its salts,
isomers, and salts of isomers whenever the existence of those salts,
isomers, and salts of isomers is possible within the specific
chemical designation (for purposes of this subdivision only, the term
"isomer" includes the optical, position, and geometric isomers):
and contains:
(13) Marijuana.
(20) Tetrahydrocannabinols...synthetic equivalents, derivatives
So in California, marijuana is currently scheduled under Health and Safety Code Section 11054 subdivision (d) paragraph (13), and tetrahydrocannabinols are currently scheduled under Section 11054 subdivision (d) paragraph (20).
Prop 19 does say in C. Intent that "This Act is intended to limit the application and enforcement of state and local laws relating to possession, transportation, cultivation, consumption and sale of cannabis, including but not limited to the following, whether now existing or adopted in Health and Safety Code"..."11054 [relating to cannabis or tetrahydrocannabinols]." But that's the only part of Prop 19 that mentions 11054. The Intent section won't be amended to the California Health and Safety Code. Although Section 11054 (d) *does* say "Unless specifically excepted or unless listed in another schedule" and I guess one could argue that Prop 19 creates that specific exception, but does the specific exception have to exist in another schedule?
Does Prop 19 reschedule cannabis in California? If not, does Prop 19 make lawful a Schedule I drug? Does Prop 19 provide an exception for marijuana in Section 11054? Does Prop 19 lay out lawful activities that can be performed with a Schedule I drug?
In California, marijuana is currently scheduled under Health and Safety Code Section 11054 subdivision (d) paragraph (13).
Heath and Safety Code Section 11350 (a) says:
11355. Every person who agrees, consents, or in any manner offers
to unlawfully sell, furnish, transport, administer, or give (1) any
controlled substance specified in subdivision (b), (c), or (e), or
paragraph (1) of subdivision (f) of Section 11054, specified in
paragraph (13), (14), (15), or (20) of subdivision (d) of Section
11054, or specified in subdivision (b) or (c) of Section 11055, or
specified in subdivision (h) of Section 11056, or (2) any controlled
substance classified in Schedule III, IV, or V which is a narcotic
drug to any person, or who offers, arranges, or negotiates to have
any such controlled substance unlawfully sold, delivered,
transported, furnished, administered, or given to any person and who
then sells, delivers, furnishes, transports, administers, or gives,
or offers, arranges, or negotiates to have sold, delivered,
transported, furnished, administered, or given to any person any
other liquid, substance, or material in lieu of any such controlled
substance shall be punished by imprisonment in the county jail for
not more than one year, or in the state prison.
Although perhaps Prop 19, by declaring certain activities lawful, makes it so current California codes regarding unlawful activities and marijuana no longer apply. Although I guess that might be challenged by the federal government.
But will marijuana still be a Schedule I drug under California code if Prop 19 passes? Will marijuana still be a controlled substance under California code? I assume the answer is yes, since possession of more than 28.5g of cannabis will still be a misdemeanor with a $500 fine and up to 6 months incarceration.
Health and Safety Code Sections 11357-11362.9 also deal with marijuana.
California Health and Safety Code Sections 11362.7-11362.83 outline California's medical marijuana program. I don't know, but perhaps the language in Prop 19 was patterned after that code in order to create a specific exception in California code.
Can state ballot measures and initiatives remove any substance from drug schedules in state codes?
In this previous blog post, I wrote that in August 2009 the Oregon legislature passed SB 728, which directed the Oregon Board of Pharmacy to reschedule marijuana from Schedule I to Schedule II, III, IV or V. On June 16, 2010 the Oregon State Board of Pharmacy voted 4-1 to move marijuana from Schedule I to II, to recognize that cannabis has an acceptable medical use. Marijuana is now a Schedule II controlled substance in Oregon, the first state in the US to make marijuana a Schedule II drug. In February 2010, the Iowa Board of Pharmacy recommended its legislature reschedule marijuana from Schedule I to II, recognizing its medical use. But even if all 50 states reschedule marijuana, that does not mean that marijuana will be rescheduled federally. The US is still a party to the Single Convention on Narcotic Drugs, and the federal Controlled Substances Act is based on that international treaty.
Wikipedia says the UN Commission on Narcotic Drugs can reschedule cannabis. Congress can reschedule cannabis. The Executive Branch can reschedule cannabis. The US Attorney General can reschedule cannabis. The DEA supposedly looks at petitions to reschedule cannabis. The Secretary of the Department of Health and Human Services can reschedule cannabis. But the US still ratified the treaty the Single Convention on Narcotic Drugs. Cindy Fazey said total legalization would require the US to denounce that treaty, amend the treaty, or reinterpret it (which would probably be opposed by the International Narcotics Control Board.)
On August 3, 2010, an article in the East Bay Express by Robert Gammon said that according to The Bay Citizen the DEA was making inquiries into the Oakland ordinance (13033) which allows for four large-scale marijuana grow permits. I discussed the Oakland ordinance as well as some companies seeking permits in this previous blog post.
On October 15, 2010, Robert Faturechi blogged on L.A. Now on the Los Angeles Times that Los Angeles County Sheriff Lee Baca said if Prop 19 passes that marijuana enforcement by LA County sheriff deputies would not change. At a news conference on October 15, 2010 at LA County sheriff's headquarters in Monterey Park, Baca said "Proposition 19 is not going to pass, even if it passes." Baca said Prop 19 is superseded by federal law and would be found unconstitutional if passed. LA County DA Steve Cooley stood by Baca. Baca strongly said he had never experimented with marijuana. Baca said legalizing marijuana would have repercussions like traffic accident, labor disputes with employees getting high on the job, increased costs of drug rehab, and giving safe cover for drug cartels selling harder drugs. Baca said people smoking marijuana in their homes in California is already a non-priority for police agencies. The LA County sheriff's departments targets dealers. According to Faturechi, at the news conference Baca said local law enforcement agencies in California "should abide by federal drug laws prohibiting marijuana even if the state measure passes."
On October 20, 2010, Dennis Romero blogged on LA Weekly, with the headline "If California Legalizes Pot, The Feds Might Sue: Boy, The Obama Administration Really Doesn't Want Us To Vote For Prop. 19."
Romero wrote about US drug czar, Director of ONDCP Gil Kerlikowse, telling the AP that if Prop 19 passes, the DOJ may sue, arguing that California has no right to legalize a drug that's still a Schedule I drug federally. That was after the announcement by US Attorney General Eric Holder. Kerlikowse said "I think it's also important the people of California get the facts, and the way this proposition is being sold doesn't hold up to scrutiny."
Romero said "This all sounds like a scare tactic to us -- a move by federal officials to prevent votes for Prop. 19. And it makes us want to vote for it even more."
Prop 19 creating a conflict with federal law was on the reasons that the Los Angeles Times opposed Prop 19, which I previously blogged about here.
Alan Markow, in an article published October 20, 2010 on CAIVN, The California Independent Voter Project, also doubted the statements by Eric Holder. Markow said "it was a genuine head-scratching moment for advocates of legalizing the general use of cannabis." Markow wrote "only a few years ago, the feds decided not to prosecute licensed medical marijuana distribution and consumption. So why the change?"
Markow wrote that apparently the DOJ doesn't want to see a precedent based on code alteration in a single state. He said "there's something that just doesn't ring true about Holder's out-of-the-blue announcement."
Markow linked to a blog post by Jacob Sullum of Reason magazine, which gives some statistics related to marijuana. It said in 2008 there were 848,000 marijuana arrests, and only 1% of them were made by the feds. Also, there are only 5,500 DEA agents in the US, but 70,000 cops in California. Markow said Sullum said the Department of Justice "certainly can make trouble, but it simply does not have the resources to bust a significant percentage of the state's marijuana offenders now, let alone after every adult is allowed to grow his own pot." Markow said the DOJ can try to influence voters.
Stephen Gutwillig of the Drug Policy Alliance said 14 states and DC now have medical marijuana laws, 80 million people live in those places, and "All that happened without a single change in federal law."
Markow said, "Holder's posturing is more likely an effort to put up a tough front for his DEA enforcement team and to undermine potential political leverage for Republicans should the Obama administration show any support whatsoever for softening its position on drug laws."
Markow brings up prohibition, saying "If you believe that there is no greater harm to society from marijuana usage than there is from tobacco or alcohol, marijuana laws are simply a repeat of alcohol prohibition..."
But passing Prop 19 will be nothing like repealing alcohol prohibition. The 21st Amendment repealed the 18th Amendment nationwide. Proposition 19 applies to California only. Marijuana will still be a Schedule I drug under the Controlled Substances Act. The CSA is the implementing legislation in the US for the Single Convention on Narcotic Drugs. Marijuana will still be a Schedule IV drug under the international treaty Single Convention on Narcotic Drugs. Article 23 and Article 28 of the Single Convention on Narcotic Drugs require cannabis-producing nations to have a government agency that controls cultivation. In the US, the National Institute on Drug Abuse does that.
There will be one place in the world where marijuana will be "legal", while it will be illegal nearly everywhere else. Drug smugglers and criminals will flood California.
In all likelihood, the Feds will continue to bust weed stores in California just like medical dispensaries are still raided now. The DEA enforces the Controlled Substances Act, and if Prop 19 passes, I'm sure the DEA will continue to enforce the Controlled Substance Act in California. If there are only 5,500 DEA agents in the US, wouldn't the federal government hire more after Prop 19 passes? There will be an explosion of drug trafficking out of California.
If there are 70,000 cops in California, will interdiction of drug smugglers fall mainly on California police officers, putting them at risk?
On October 15, 2010, there was an article by Chris Good in The Atlantic entitled "If Prop. 19 Passes, Can the Feds Overturn It?"
Chris Good referred to an article in National Journal and quoted Ted Ruger, a constitutional law professor at the University of Pennsylvania. Ruger said "Constitutionally, California will have a valid law" and "State officers don't enforce federal law and can't be made to enforce federal law."
Then was Lee Baca making empty threats when he said that Los Angeles County sheriff deputies would pay no attention to Prop 19?
President of the Criminal Justice Policy Foundation Eric Sterling said Prop 19 is about California attempting to authorize a form of regulation of commerce, contrary to the Controlled Substances Act. Sterling said a legal challenge to the commercial section of Prop 19 wouldn't involve a federal "commandeering" of California law enforcers or judges, and may succeed in federal court.
On October 18, 2010, Andrew Sullivan wrote an
article on The Daily Dish on The Atlantic asking "What Will The Feds Do If California Legalizes Pot?."
On October 15, 2010, an article by Daniel B. Wood appeared on The Christian Science Monitor entitled Marijuana in California: Prop. 19 won't stop federal drug enforcement.
Wood said that Carmen Trutanich, Los Angeles City Attorney, had contacted the DOJ asking them to file an injunction against Prop 19.
Tom Angell, spokesman for Yes On 19, said passing Prop 19 will jump-start a national dialogue about changing marijuana policies, so it would still be a victory even if challenged by the federal government.
Stephen Gutwillig of the Drug Policy Alliance said "The federal government may criminalize marijuana, but it can't force states to do so, and it can't require states to enforce federal law."
Which makes me wonder: What exactly can American voters legalize in their states by ballot measure or ballot initiative that is currently against federal law? Could heroin be legalized by a ballot initiative? Cocaine? Meth? Mushrooms? MDMA? Every drug scheduled in the Controlled Substances Act? If Prop 19 passes, which drug will be legalized next in California? What other things that are currently against federal law could be legalized by state ballot measure or initiative?
On October 25, 2010, an article by Ryan Tracy appeared on Newsweek entitled "What the Feds Can Do if California Passes Prop 19."
On October 27, 2010, an article appeared on the San Francisco Chronicle entitled "Prop. 19: Feds will stop playing nice", a reference to Holder's statements in 2009 that feds would go easy on medical marijuana. But if Prop 19 passes, the paper said "Washington will come down hard." The paper said "Holder signaled a legal kitchen-sink approach was in the works if Prop. 19 wins. He would go after sellers and organizations that distribute the weed. The attorney general would also go to court to stop the measure from taking effect."
The paper "The ballot measure effectively unbalances a delicate truce in the marijuana wars." I've seen opinions of people online that Prop 19 is simply asking for too much, and that greedy voters may end up "ruining a good thing" regarding medical marijuana.
The paper said Prop 19 welcomes trouble "in combatting illegal drug use and interferes with efforts to 'target drug traffickers who frequently distribute marijuana alongside cocaine and other controlled substances.'"
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