California's Long Journey to Legalizing Pot the Right Way

Proposition 64 promises to make recreational pot legal in California, but that's not the end of a debate that encompasses economics, race, and criminal justice reform.
October 6, 2016, 4:00am
An employee at a medical marijuana dispensary in Sacramento waters some pot plants in 2015. (AP Photo/Rich Pedroncelli, File)

People keep saying it, because it continues to be true: Marijuana legalization is coming to a state near you. This year, nine states have ballot measures that either legalize medical or recreational pot or (in Montana's case) expand a medical pot program. In the five states where full-blown legalization is on the table, the ballot measures are leading in the polls, and none seems more of a sure thing than California's Proposition 64, currently polling at 60 percent among likely voters.


Prop 64—formally titled the Control, Regulate, and Tax Adult Use of Marijuana Act—would allow anyone in the state over the age of 21 to possess an ounce of whole herbal marijuana. Up to eight grams of concentrate like hash, wax, and cannabis oil would also be legal, as would home grows of up to six plants starting November 9. It would also create a strongly regulated recreational marijuana industry, setting licensing guidelines for cultivators and retailers alike, to debut in 2018.

The 62-page measure would set industry standards for product testing, packaging, labeling, advertising, and environmental compliance while establishing tax rates for marijuana production and sales. "We were really comprehensive on this one—it's long for a reason," said Lynne Lyman, the California state director for Drug Policy Alliance, one of the primary groups involved with designing the initiative.

As is usually the case with marijuana ballot initiatives, 64 has been sold as a way to raise tax revenue, but it's also "a massive sentencing reform opportunity," according to Lyman. It would make it extremely difficult to get a felony for pot in California—for offenders under 18, fines and incarceration would be replaced with drug education, counseling, and community service. A mechanism would be created for the dismissal of past marijuana convictions, making 64's sentencing revisions fully retroactive. "Nobody quite appreciates the scale of 64's sentencing reform," Lyman told me. "I think six months from now people will be finally waking up to how huge this is."


Some of the previous generation of marijuana activists are wary of 64, however. Dale Gieringer, state coordinator for California NORML and a co-author of Proposition 215, the 1996 measure that created the country's first state medical marijuana system, supports 64 generally but worries about the effect it will have on current pot patients. The new tax rates, which apply to both the recreational and medical industries, "are really, inordinately high," Gieringer told me. "You've got 25 percent new state taxes on marijuana, and medical patients can get waived sales tax of 7 to 8 percent, but basically they're looking at a new tax increase on the order of 17 percent, which I think is going to encourage a lot of black market activity for the foreseeable future."

He also worries that because 64 permits localities to legislate their own tax rates for marijuana, saying, "There's a real danger of over-taxation occurring under Prop 64's design."

Many in the state's medical marijuana industry oppose 64 for similar reasons—they're worried about the taxes that 64 will bring, as well as the potential it could have to upset the current system. "We don't need it," Dennis Peron, a co-author of Prop 215, told the LA Times this week.

Richard Eastman, a Los Angeles–based activist who produces the annual Smoke-In at the White House every Fourth of July and who joined the medical marijuana movement after contracting HIV, believes that "all [marijuana] use is medical," that the status quo under 215 is optimal, and that 64's proponents have "got everyone entrapped with the words 'legalization,' 'taxation,' and 'recreation.' It's brainwashing people." Eastman insists that voting against Proposition 64 is a "no-brainer when you boil it down to that it's not gonna help poor people. That's why Peron and I did it—to help indigent people. These companies want to control the marijuana so they make tons of money—we want to make sure it's given away free to people who don't have money—and that's why they put this thing on the ballot."


Prop 64 does make nods toward the inequality fostered by the war on drugs. Some of the tax revenue will go to a community reinvestment fund that Lyman said could eventually amount to $50 million a year in grants for communities disproportionately impacted by drug dealing and the widespread arrests of drug dealers. Keeping people with criminal records out of the legal pot industry has led to a freezing out of people of color from other states' marijuana economies, critics say; importantly, Prop 64 would allow individuals with prior drug convictions to participate in the legal industry.

"Knowing that everyone who's been in the marijuana gray market for the past 20 years has very likely had an encounter with law enforcement, we want the people with experience to stay in the business," Lyman said. "We know our policing practices are discriminatory, we know that many more people of color are arrested than white people, and it's not fair that those people would be automatically excluded from the industry."

But Lyman acknowledges that prejudicial enforcement will unfortunately endure. "When [California] reduced marijuana possession from a misdemeanor to an infraction in 2011, racial disparities persisted. In Washington State, arrests dropped 99 percent, but racial disparities remained the same for the ones that were left. We're not ending racism—we're reducing the number of tools by which to wield racism."

Lyman acknowledged that her organization is "concerned about cities adding on additional excise taxes, which we know will happen," but disagrees with those who find 64's tax structure a deal-breaker: "People who are less concerned about the thousands of lives rotting away in the jails—if their conscience allows them to be worried about paying too many taxes over someone else's life—I'm sorry, I don't have very much sympathy for that point of view."

If Prop 64 passes as expected, it won't be the final word on pot legalization in the state. The state legislature will be able to amend most of 64's rules with a simple majority vote, a stipulation that has convinced activists like Gieringer that Prop 64, despite its flaws, can be improved. California NORML plans to pursue a program of ten revisions to 64 if it passes, including forbidding local taxes and delivery bans for medical marijuana, increasing tax breaks for medical users, and expanding areas where medical and recreational marijuana can be consumed.

Gieringer sees 64 as the beginning of a much longer negotiation around cannabis regulation. "We're still having lawsuits over what Prop 215 means 20 years later," he said. "This is going to go on for generations. Just look at California's Alcoholic Beverages Code—it's huge. That's probably the direction that marijuana regulation will likewise go in California. We're just getting started."

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