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Prop. 64: Debunking the Bullshit and Getting Real with the Facts

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For those of you who don’t know me, please allow me to introduce myself. I am a 46 yr. old criminal defense lawyer, with an emphasis on marijuana law. I have been smoking marijuana for more than three decades and have grown at least some marijuana nearly every year for more than two decades, since before there was such a thing as medical marijuana. I am a hippie gone lawyer who has been busted numerous times, served 2.5 yrs. in New York State Prison for LSD, from 1989-1992, and was busted in the 90s with what they called 51 pounds of marijuana (it was actually just leaf that I was transporting for my infamous edibles). Many of my oldest and most cherished friends make their living off of the black and gray (medical) marijuana markets. I went to law school, beginning in 2004, and became a lawyer in 2007. I mostly do court-appointed cases, representing indigent people at the both the trial and appellate levels. I also study medical marijuana law and have represented a bunch of people throughout the Bay Area, presenting medical marijuana defenses.

I figure my background in both marijuana culture and marijuana law should give me some sort of cred when it comes to the debate over Prop. 64. I’m writing this mostly to counteract some incredibly dishonest claims that are being spread about the internet. The people writing these articles and designing the facebook memes are not lawyers and they have apparently not bothered to consult with any lawyer, because their claims about the legalities of Prop. 64 are completely false. Here are some facts about Prop. 64 that might surprise you if you get your legal information from unqualified people like those writing the Anti-Prop. 64 articles:

There is Not a Single New Crime Created by Prop. 64
Prop. 64 ends searches based on marijuana, eliminates a bunch of crimes, reduces felonies to misdemeanors, reduces some misdemeanors to infractions, and allows for the clearance of criminal records. It does not create a single new crime.

Contrary to what is being claimed in the anti-Prop. 64 articles, the initiative will actually provide significant relief to hundreds of thousands, if not millions, of people with marijuana offenses in the past, present, and future. In recent years an average of about 12,000 people per year were arrested for felony marijuana offenses in California, which would no longer be felonies under Prop. 64. This is down precipitously from the decades preceding Prop. 215, when there were 40,000-60,000 felony marijuana cases a year. Extending this pattern back several decades, it’s easy to see that there are well over a million people with felony marijuana convictions from California, which they would be entitled to reduce to misdemeanors, beginning the day after Prop. 64 passes. Aside from the harsh punishment for the offense, having felony convictions on your record affects your life in numerous ways, such as:

1. If you’ve ever been convicted of a felony, even if it’s for giving someone a pot brownie at the Summer of Love in 1969, you are permanently ineligible to be on a jury or to purchase or possess a firearm without being guilty of a felony.
2. You have much greater difficulty getting a job and you are often so constrained by this that you’re more likely to commit new crimes to get by.
3. Every prior felony, no matter how old, is used against you in future cases. If you have two or more prior felonies, you are presumptively ineligible for probation on a new case and must be given a prison sentence, unless the judge states on the record that it is an unusual case that warrants a grant of probation.
4. You may still be on felony probation, which involves piss testing and random searches whenever any cop wants to hassle you.
So, we desperately need the provision of Prop. 64 that allows people to get rid of past felony convictions.
The reason why some people with no legal training are claiming that Prop. 64 creates new crimes is that they are misunderstanding one of the most basic rules of legal interpretation. When a voter initiative seeks to change existing law, it first repeats the language of those laws that already exist, in normal text. It then puts strike marks through any language from the existing law that is eliminated by the initiative, and adds any new language in italics. Every crime listed in Prop. 64 already exists under current law, only with greater penalties. So, if someone claims that there is a new crime in Prop. 64, ask them what specific section of the initiative they are referring to. What will follow is the sound of crickets, because no such section actually exists. If they do cite a code section, google that section and you will see that it is already a crime under current law, with either the same or greater penalties than under Prop. 64. Here is a link to the text of Prop. 64, where you won’t find a single new crime listed: https://www.oag.ca.gov/system/files/initiatives/pdfs/15-0103%20(Marijuana)_1.pdf Current marijuana laws can be found here: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=hsc&group=11001-12000&file=11357-11362.9

Here is a chart I made that breaks down the way that Prop. 64 affects marijuana crimes:

The Prohibition of Marijuana is an Instrument of Racial Oppression
According to the census (http://www.census.gov/quickfacts/table/PST045215/06 ), the population of California is roughly 38% White and 6% Black (yes, I know there are other racial groups). Yet for marijuana felonies, that 6% of black Californians make up 20% of all arrests. Meanwhile, the 38% of white Californians make up only 29% of felony marijuana arrests. https://oag.ca.gov/sites/all/files/agweb/pdfs/cjsc/publications/candd/cd15/cd15.pdf? This means, when adjusted for population, a black person with weed is more than four times as likely to get busted for a felony as a white person with weed. I’m sure I don’t have to spell it out for you that pedestrian and vehicle searches related to marijuana are also skewed along racial lines. This is why social justice and civil rights organizations are lined up solidly behind Prop. 64. Here is a list of the organizations supporting Prop. 64 (from ballotpedia):

ACLU of California ▪ African American Alcohol and Other Drug Council of LA County ▪ All of Us or None, Southern California ▪ Berkeley Patients Group ▪ Break the Chains: Communities of Color and the War on Drugs ▪ Broken No More ▪ California Academy of Preventive Medicine ▪ California Cannabis Industry Association ▪ California Council of Churches IMPACT ▪ California Council of Land Trusts ▪ California Medical Association ▪ California NAACP ▪ Cut50 ▪ Drug Policy Alliance ▪ Ella Baker Center ▪ Ensohara Inc. ▪ Equality California ▪ Friends Committee on Legislation of California ▪ Harm Reduction Services ▪ HealthRight 360 ▪ Institute of the Black World 21st Century ▪ Justice Not Jails ▪ Los Angeles Community Health Project ▪ Los Angeles Regional Reentry Partnership (LARRP) ▪ Marijuana Policy Project of California ▪ Moms United to End the War on Drugs ▪ NORML ▪ Our America Initiative ▪ Our Revolution ▪ Parents for Addiction Treatment & Healing ▪ Progressive Christians Uniting ▪ Project Cannabis ▪ Project Inform ▪ Sacramento Black Chamber of Commerce ▪ Students for Sensible Drug Policy ▪ William C. Velasquez Institute ▪ Youth Justice Coalition Law enforcement organizations ▪ Blacks in Law Enforcement of America ▪ Law Enforcement Against Prohibition (LEAP) ▪ National Latino Officers Association Unions ▪ California Nurses Association ▪ United Food and Commercial Workers Western States Council ▪ United Farm Workers
Meanwhile, the opposition to Prop. 64 consists of police, prosecutors, prison guards, Republicans, and some self-interested growers. Whose side are YOU on?

Prop. 64 Leaves Every Bit of Legal Protection for Medical Marijuana in Place
As someone who has developed quite a bit of expertise on medical marijuana law, the false claims going around about how Prop. 64 eliminates medical marijuana protections are very frustrating. The initiative states, over and over and in plain language, that it should not be interpreted to infringe on medical marijuana rights. In fact, it even adds a few new protections for medical marijuana patients. How otherwise reasonable people can ignore the plain language of the initiative and promote bizarre theories about how changes to medical marijuana law are secretly encoded into the initiative is beyond me. But, don’t take it from me. Take it from Bill Panzer, the lawyer who actually wrote the text of Prop. 215: http://theleafonline.com/c/politics/2016/08/prop-215-rights-not-affected-prop-64/
I get multiple calls every week from people asking me about medical marijuana law. I’m always amazed at the things that people believe are legal under current medical marijuana law. Most people in “the industry” are sorely in need of a consultation with a lawyer about what they are doing. In most cases, what they are doing is either wholly illegal (black market), or would require an expensive presentation of a medical marijuana defense (gray market), which the jury may or may not buy.

Prop. 215 did not change the laws punishing marijuana crimes and did not legalize anything. What it did is allow people to present what’s called an “affirmative defense” in court. The police can bust you and the DA can prosecute you, but if a jury finds that the marijuana grown/possessed was not being sold for profit and was consistent with the medical needs of the patients who were growing/possessing it, they can return a Not Guilty verdict. Going through that process is not an ordeal I would wish on anyone.

In contrast, Prop. 64 does change the laws punishing marijuana crimes and does make possession and cultivation of marijuana legal for people over 21, within the quantity limits. I really can’t see how you can be pro-marijuana and against that, unless you are either badly misinformed or you first priority is the profits of a relatively small group of growers over the freedom of millions of people.

And are all people able to get medical marijuana? Hell no! Some people are too broke to pay the doctor every year. Some just don’t have it quite together enough to go through that process every year and carry their recommendation with them all the time. Millions of others simply are not sick and don’t want to go pay a doctor to say that they are. Limiting marijuana to medical patients excludes the majority of marijuana users.

The biggest way that Prop. 64 will affect medical marijuana is that, after it passes, most people will no longer bother to pay a doctor every year to give them a recommendation. Since everyone will be able to grow their own and stores will be selling cannabis to people without doctors’ notes, the distinction between medical and recreational marijuana will be made meaningless, except in two ways:

1. With medical marijuana, you are not subject to any plant limits and can grow as much as is reasonable for your medical needs.
2. If you present a medical card, you won’t have to pay the marijuana tax when you buy cannabis at a retail establishment.
So, if you want these two advantages, you can continue to pay a doctor every year. But, most people are gonna take the recreational route and those doctors are gonna have to find another way to make money, which leads me to this:
What About the Growers?
As I stated at the beginning, I’ve been growing my own for more than 20 years, although it’s been a long time since I did it for profit. Many of my very dear friends grow for a living. I love these people , I visit their land and their grow scenes all the time, and I don’t want to see them face any economic challenges.
That said, I am finding it outrageous and sometimes laughable that people are opposing Prop. 64 because of its impact on “small farmers,” as if growers are waking up before dawn, at the rooster’s crow, and going out and tilling the fields until sundown. Farmers grow crops by the acre, not by the square foot. No small farmers are growing 20 or 50 or 99 plants of any other crop.
There is a reason that most pot growers are willing to risk imprisonment to grow marijuana and not simply opting to grow legal crops that carry no such risk. It’s because it’s relatively easy money. Most of my grower friends were able to buy their own land after a couple years and many of them now own additional properties in other places, like Hawaii and Costa Rica. They work extremely hard during harvest season, but then get to take the whole winter off and work only intermittent hours during the spring and summer. I’m glad that so many good people have been making a nice living, are able to own homes, and have lots of leisure time, but that is no good reason to stand in the way of the human rights progress that Prop. 64 represents.
This is the part where the anti-legalization people start making noises about how hard a job growing marijuana is. You don’t have to tell me, I’ve done it a bunch. But, please lets not pretend that a small pot grower has to work as hard as an actual small farmer. Let’s do some math, shall we?

I’ve figured out that in my small, inefficient, personal ganja garden it takes me an average of 16 hrs. of work for every pound that I grow. 13 hours for harvesting/drying/trimming (plant to bag), 30 minutes for digging holes and mixing soil, 30 minutes for setting up/maintaining irrigation, 30 minutes for tying/staking, 30 minutes for fertilizing, and an hour for miscellaneous trouble shooting. That’s how many hours it takes me for every pound I produce. People growing fifty or a hundred pounds a year are obviously doing it more efficiently than I am, but I’ll stick with the 16-hour figure as a conservative estimate.
So, if someone grows 40 outdoor plants and yields a total of 100 pounds, they will have to put in 1600 hours of labor that year. But, they will not do most of this labor themselves. They will pay workers about $20/hr. to do at least half of this work, especially the trimming. At an average price of around $1400 per pound for outdoor, this grower will take in $140,000 for that year. If workers do half of the work, they will pay out $20 x 800 hours or $16,000. For the remaining $124,000, the grower will have worked 800 hours themselves, earning $155/hr. Nice pay for a small farmer who never has to even leave home! After 7 years of expensive education to become a lawyer, I make about half that much per hour, out of which I pay income tax, self-employment tax, bar fees, mandatory insurance, and office overhead, most of which growers are not paying.
Growers have had a good run at prohibition-inflated prices. Veteran growers will remember when wholesale prices reached just shy of $5000 per pound and helicopters filled with SWAT teams were buzzing every homestead. The greater ease that came with the passage of medical marijuana cut the price of weed in third, as supply increased drastically without any similar increase in demand. No doubt Prop. 64 will reduce the price even further, as people who aren’t medical patients will be able to grow their own and many more people will enter the black market because they’ll only be facing misdemeanors instead of felonies. Supply will increase, far outpacing demand, and prices will drop.

That price drop will hurt some growers and I’m sorry to see that happen. But, every step in the right direction comes with some costs for certain subsets of the population. When we stop clear-cutting old growth, loggers lose income. When we shift to renewable energy, coal miners lose jobs. Reduce prison sentences and prison guards are out of work. Etc. With Prop. 64, the losers will be medical marijuana doctors, growers, prison guards, and lawyers like me. While some in those other groups oppose Prop. 64 out of self-interest, the pot lawyers seem to be unanimously in support of it, even though it will diminish our incomes. That is because we have seen all the suffering caused by these felony marijuana prosecutions up close. We’ve seen the fear, the inconvenience, the cost, the discrimination, the incarceration, and we cannot put our own financial interests ahead of the lives of the people we represent. I know lots of growers who are for Prop. 64, even though they realize it will cost them money. Those are the growers who I’m proud to call my friends. The others? Let’s just say I’m not impressed.
Chart Footnotes
[1] There is an exception for people who have a prior violent felony conviction (known as a strike) or who have to register as sex offenders. For them, the court may sentence them as either a misdemeanor or a felony.
[2] There is a conflict in the text of the initiative where section 11362.1 makes up to 8 grams of concentrate totally legal, but section 11357 reflects a 4 gram limit. The legal rule on conflicting language is that it must be interpreted in the manner most favorable to the criminal defendant – so it’s 8 grams.
[3] There is an exception for people who have prior violent felony convictions (strikes), those who have to register as sex offenders, those with two or more prior cultivation convictions, and those who commit certain environmental crimes in the course of cultivation. The court can sentence those people as either a felony or a misdemeanor.
[4] Exception for people who have prior violent felony convictions (strikes), those who have to register as sex offenders, those who have two or more prior possession for sale convictions, and when the intended sale was to someone under 18 or using an employee who is under 21. The court can sentence those people as either a felony or a misdemeanor.
[5] Exception for people who have prior violent felony convictions (strikes), those who have to register as sex offenders, those who have two or more prior sale convictions, those who sell to minors, and those who import or export marijuana to/from another state. The court can sentence those people as either a felony or a misdemeanor.