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Stems or Bud? Proposition 19 AGAIN

I’m told by my friends who actually smoke the stuff that there’s little utility to smoking marijuana stems. When you’re looking to buy, you’re looking for a baggie that’s heavy on bud. (Yeah, I said it. You’re not looking for Bud Light.)

On the other hand, I’m told by numerous people who stop by my blog to comment on the other articles I’ve written lately about Proposition 19 that, when it comes to legislation, they’re just fine smoking stems.

A large number of very vocal people think that Proposition 19 is going to legalize marijuana in California. Let me be as blunt about this as I possibly can be: there is nothing California can do to legalize marijuana. That is — if you’ll pardon the expression — a pipe dream. It cannot currently be done. Legalizing marijuana in California is impossible.

The most that California can do is to reduce the criminal penalties — to zeroeven — in any court of the State of California. But marijuana is now, and will remain for some time to come, illegal throughout the United States of America and there are courts of the United States of America in California. There are courts of the United States of America right here in Fresno, California, where I practice criminal defense.

Those courts can still prosecute people for growing, possessing, transporting, selling, or using marijuana.

And they will.

So that’s one thing about Proposition 19. No matter what stoned-out-of-their-minds, pie-in-the-sky pipe dreams someone is holding onto regarding Proposition 19, it’s not going to “legalize” marijuana.

So far, the feds have mostly left small medical marijuana users alone. Hell, near as I can tell, they’ve pretty much left large medical marijuana operations alone. (Though rumor has it the local sheriff in counties like Tulare targets for harassment anyone who doesn’t buy from one of his relatives, so — if true — that probably explains why the feds leave them alone.)

Relative to the general population, there aren’t that many medical marijuana users. And, as I said, except where there are sheriffs who are in the biz for themselves, or protecting family members who are in the biz, the feds can count on local heat to deal with the problems.

But if the state were to suddenly decriminalize marijuana, this would throw virtually the entire enforcement effort into the lap of the feds. If the law we think we’re about to pass turned out to be even marginally successful and the cops in large areas of California stopped going after marijuana users because they could no longer make a charge stick, then the feds would have to step in. Or just give up on California.

I have serious doubts they’d just give up on California. After all, it’s frequently been said that as California goes, sooner or later so goes the nation. If the national drug war means anything, it means big bucks and reduced constitutional limitations on law enforcement, so they aren’t about to let the nation go to pot. Metaphorically speaking.

You know what I mean.

So that’s one problem with this whole “Proposition 19 will make the world safe for marijuana” program.

The second problem is that Proposition 19 doesn’t actually even decriminalize marijuana under California law. It loosens things up a bit, to be sure. But it doesn’t do away with laws regulating the growth, possession, transportation, sale, or use of marijuana. Arguably — that means some people can make a reasonable argument that goes one way; some can make a reasonable argument that goes the other — it makes it easier for local governments to regulate marijuana.

For one thing, the law quite clearly makes it legal for local governments to devise plans for taxation of marijuana. After all, it’s not called the “Regulate, Control and Tax Cannabis Act of 2010″ for nothing. (Here’s the link to the text of the law so you can try to see for yourself. For some reason I can’t always pull up the Voter Information Pamphlet. Hopefully, it works for you.) But as I’ve noted in other articles there are numerous ways in which the powers given to local governments may make even decriminalization within California little more than a joke on the voters.

A number of people, including this most recent commenter to one of my earlier articles, keep repeating — as if it were some tantric guarantee — that medical marijuana users will still be able to purchase, use, or personally cultivate marijuana “per the CUA.”

The CUA, for those who haven’t kept up on such things, is the Compassionate Use Act. This Act was, or is, the result of the passage of California’s Proposition 215 in 1996. It “legalized,” or, more accurately, “decriminalized” the medical use of marijuana as far as California’s laws are concerned.

Ever since the CUA was passed, various forces within California — mostly local governmental forces in the more conservative areas of California — have fought against it.

Under the CUA, people who had a recommendation from their doctor, whether orally or in writing, to try marijuana to alleviate their physical suffering — those people had the right to grow, possess, and use marijuana. They didn’t — and still don’t — need a “medical marijuana card.” They didn’t — and still don’t — need a prescription. All they needed was for their doctor to have said “Hey, nothing else has worked. You might want to try marijuana.”

Hell, the doc didn’t even need to point out that “nothing else has worked,” although most doctors would not “recommend” trying marijuana otherwise.

Then in 2003, the State Legislature got into the Act. They said, “Law enforcement is having a hard time knowing when they should arrest someone and when they shouldn’t. We need to clarify a few things about the CUA.” (They really didn’t, because then, as now, the cops were going to arrest whomever they wanted. But that’s another story, and it’s largely political and economic in nature, and would drag this already long post out much longer than it needs to be. So I’m going to skip all that.)

Thus the Medical Marijuana Program Act, or MMPA, came into being.

In theory, the MMPA made it easier for the po-po to know who to arrest and who to leave alone. Among other things, it provided that those who cared more about not being arrested than they cared about keeping their health status secret — those people could apply to the County in which they lived to receive a “medical marijuana card.” If you had a card, then the po-po were supposed to leave you alone if they found you with an “acceptable” amount of marijuana growing on your property, or in your possession.[1]

They were supposed to leave you alone.

They didn’t, of course. Because the truth is that in the United States of America, and particularly in certain counties within Central California, the po-po don’t actually care what the law says. They don’t enforce laws. They enforce their own personal desires. In some counties — Tulare is rumored to be one of them — if the po-po receives a kickback from the grower, the grower is okay, card or no. If the po-po gets no kickback, the presence of a card means nothing. I’ve had clients tell me that they showed the po-po their cards, whereupon the po-po confiscated the cards and said, “What card?” (Which, if you think about it, is a really stupid move. Unless the local registry is in on this crime, it won’t work because the registry will show the person is properly registered. Even then, the CUA does not require that a person be registered in order to reap its benefits.)

At any rate, as I said, certain county governments actually fought back against the will of the voters. Because those counties bitch if a judge overturns a clearly unconstitutional initiative of the voters; they ask, “why don’t our votes count?” But if the voters approve something like, oh, I don’t know, decriminalization of marijuana for medical marijuana patients, those same counties simply pretend the initiative never passed.

So, for example, when the State said, “Look, the voters decided medical marijuana should be okay in California. Let’s quit wasting time arresting medical marijuana users. We’ll register those who are legal, give ’em cards, and then the cops will know who to leave alone,” the counties said, “Hell no!” They challenged the law, arguing that it was preempted by federal law. Then the Fourth District Court of Appeal set them straight.[2]

When that same Act (the MMPA) said cooperatives and collectives were legal, the counties said, “Hell no!” They challenged the law, ironically arguing that it illegally amended the CUA. The Fourth District Court of Appeal again set them straight.[3]

Now, in case you haven’t spotted the pattern here, it does like this:

  1. California voters decriminalize medical marijuana.
  2. Counties that don’t like marijuana fight back.
  3. The courts tell the counties that their moves to “re-illegalize” marijuana fail.

But why?

Because, the courts pointed out, the Compassionate Use Act was an initiative of the voters. Only the voters can change what the initiative did. Only the voters can change the Compassionate Use Act. Only the voters can put limitations on the use of medical marijuana which they’ve already voted to de-criminalize through Proposition 215, which the voters passed in 1996.

So guess what Proposition 19 is. An initiative. Guess who’s being asked to pass it. The voters. Guess what the courts will say if and when the counties come back for another round of attacks on the de-criminalization of marijuana in their counties.

If you guessed that they’ll argue that the voters added new limitations to the previously-passed laws implemented by the “old” Proposition 215, you guessed correctly.

Will the courts buy it? I don’t know. They might not, but I think they might.

And that’s why I’m voting against Proposition 19.

I’m not a marijuana user. But I believe in limited government. And I do believe that if people want to use marijuana, they should be allowed to do so. I particularly believe that if people need marijuana to ease their suffering from various medical ailments, they should have it. Medicine should not be illegal.

And I believe there is a good possibility that local governments — which already try everything they can think of to block the legal (under California law) cultivation, transportation, acquisition, and use of medical marijuana — will use whatever tool they can find to stop people from legally using marijuana.

And that’s why I’m voting against Proposition 19. It is such a tool.

If you buy into Richard Lee’s bullshit, you’re a tool. For him, it’s not about whether you can use marijuana; it’s about whether he can make a buck selling it. When he speaks, it’s about the business, not the bud.

If, like Richard Lee, you think it’s not about the bud, then by all means vote yes on Proposition 19. When it comes to de-criminalization of marijuana, Proposition 19 is all stems.

  1. The original formulation of the MMPA contained specific restrictions on the amount of marijuana you could grow or possess. In January 2010, the California Supreme Court struck down that portion of the law as being an unconstitutional — under the California Constitution — amendment of the CUA. (People v. Kelly (2010) 47 Cal.4th 1008 [103 Cal.Rptr.3d 733].)
  2. County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 815 [81 Cal.Rptr.3d 461].
  3. People v. Hochanadel (2009) 176 Cal.App.4th 997, 1011 [98 Cal.Rptr.3d 347].