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Radical Rant: Part Two of Russ Belville’s Top 10 Myths About California’s Prop 64

Russ Belville

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Earlier this week I went off on the many irresponsible and often untrue things said about Prop 64, the legalization initiative before California voters in November.

I wanted both to cite the opposition’s case fairly, and provide the actual facts of the matter, citing the relevant portions of the initiative itself.

The result turned out to be long, so I split the list into two parts. Here’s myths six through ten, again with footnotes down at the bottom.

MYTH #6:

“PROP 64 CREATES NEW CRIMES AND IMPRISONS KIDS!”

FACT: PROP 64 ELIMINATES SOME CRIMES, REDUCES PENALTIES, AND SPARES KIDS FROM JAIL.

When some people read Prop 64, they will find a section that lists some crime and penalty and claim that is a “new crime”. Usually what they’ve found is just a restatement of what the crime is now (like possessing over an ounce, no change[38]) or they’ve found the penalty that applies to a crime in general (like anybody any age sharing any marijuana[39]) without noting the section below that describes legal exceptions (like sharing less than one ounce of marijuana between adults is legal[40]).

The truth is that the penalty for every violation of marijuana law in California remains the same or is decreased or is eliminated under Prop 64, with the exception of toking in public where tobacco smoking has been banned – that increases from a $100 to a $250 infraction ticket[41]. The only new penalties created are some infractions for things like having an open container of marijuana[42] or toking as a passenger in a car[43] and penalties related to commercial license and regulation violations[44].

Kids are far more protected under Prop 64. Under current law, they can receive the infractions, misdemeanors, and felonies just as adults can[45]. Under Prop 64, all juvenile marijuana violations for possession[46], cultivation[47], sales[48], transporting and gifts[49] become infractions with counseling, community service, and drug education. For the 18-20-year-olds, possession[50], cultivation[51], sales[52], and transporting and gift[53] penalties stay the same or are reduced.

MYTH #7:

“PROP 64’S LOW LIMITS MEAN COPS WILL BUST MORE TOKERS!”

FACT: PROP 64 WILL LIKELY ELIMINATE THREE OUT OF FOUR OF ALL MARIJUANA CHARGES.

A bizarre theory about Prop 64 is that by setting its possession limit down to a measly one ounce and cultivation at a mere six plants per household, so many people will be over that limit that cops will make even more arrests than before, especially now that they’re funded by marijuana taxes[54].

But how? When marijuana is legalized, the sight and smell of it are no longer probable causes for police investigation. The four legal states have all had to retire their pot-sniffing K-9 officers, because a dog can’t smell the difference between a legal ounce and an illegal pound. Even if the dog sniffs coke, meth, and heroin, too, he’s useless, because a savvy dealer would just keep a legal gram of weed in his illegal drug stash. His defense attorney will get the stash evidence ruled inadmissible in court because the cops can’t prove the dog alerted on illegal drugs rather than legal marijuana.

This isn’t just conjecture; it’s played out in the legal states. Colorado in its first year of legal weed saw an 80 percent decline in all marijuana charges filed in criminal courts. In Washington, the decline was 63 percent, presumably because they do not have legal home grow, so evidence of cultivation is still a probable cause to investigate crime.

MYTH #8:

“PROP 64’S TAXES GO TO A SPECIAL ‘SLUSH FUND’ FOR THE GOVERNOR!”

FACT: PROP 64 DETAILS EXACTLY HOW TAXES BENEFIT ENVIRONMENT, RESEARCH, AND COMMUNITIES

A misleading critique of Prop 64 claims that the marijuana taxes don’t go into the General Fund and won’t benefit schools. That’s true enough on its face, but ignores the reasoning why.

California’s laws are such that money that ends up in the General Fund is subject to the whims of the Legislature – that’s where you’d put money if you didn’t want to earmark where it goes. By placing the taxes in a special Marijuana Fund, Prop 64 can dictate exactly where the money goes.

Indeed, K-12 public schools will not directly benefit from the Marijuana Fund. But that doesn’t turn it into the “Governor’s Slush Fund”. Instead, taxes must first pay the costs of administration[55]. Then Prop 64 allocates millions for university research of marijuana and policy[56], law enforcement research on marijuana-impaired driving[57], local health departments and non-profit community services[58], and medical marijuana research[59]. Whatever remains after earmarks is divided 60 percent to youth drug prevention programs[60], 20 percent to clean up the environment from illegal cannabis grows[61], and 20 percent to law enforcement[62].

Some people object to funding law enforcement with marijuana revenues. But if the cops liked that money more than what they’ll be losing in federal drug war grants, asset forfeitures, and bail, fees, fines, penalties, and restitution funds, would they all be lining up to vote no on Prop 64?

MYTH #9:

“PROP 64’S DEFEAT WILL SEND A MESSAGE THAT PEOPLE WANT TRUE LEGALIZATION™!”

FACT: PROP 64’S DEFEAT WOULD SET BACK REFORM GLOBALLY, DENY CALIFORNIA LEGALIZATION UNTIL AT LEAST 2020

Many of the pot-smoking opponents of Prop 64 believe that other initiatives that failed to make the ballot, like CCHI or MCLR, are superior to Prop 64 and we should wait for the next opportunity to pass one of those, because the people are warming to legalization and will see the wisdom in those proposals.

They’re operating from the presumption that the public is just like us and wants marijuana legalized because it’s the right thing to do. The public, however, is not like us and is only recently warming to legalization because they find prohibition is wasteful and doesn’t work and legalization brings in revenue without raising their own taxes.

Initiatives, especially in California, requires millions of dollars and thousands of signatures. In the entire medical marijuana era, only two legalization initiatives have made the California ballot, both largely because a wealthy person donated millions of dollars to make it happen. The proponents of CCHI and MCLR have run their campaign almost every election cycle since Prop 215 passed. They have never gathered half the signatures or secured any significant funding.

It’s highly unlikely that following a second-straight electoral defeat for limited marijuana legalization, big funders are going to double down on Sean Parker’s losing bet in a non-presidential election with lower, more conservative turnout. So it’s 2020 before the next shot at legalizing California will be mounted, and the people with the money and connections to do it aren’t going to think their last attempt was too conservative.

MYTH #10:

“NOBODY REALLY GOES TO PRISON IN CALIFORNIA FOR POT! WE CAN WAIT!”

FACT: PROP 64 RETROACTIVELY REDUCES PENALTIES, FREES PRISONERS, EXPUNGES RECORDS

Of all the myths propagated by the pot-smoking opponents of legalization, none is more odious than one they’ve stolen from the nation’s leading prohibitionist, Kevin Sabet, who is fond of telling audiences that legalization is unnecessary, because what it legalizes are amounts of marijuana that people don’t really go to prison for anyway. The California prohibition apologists also throw in that personal possession is just a ticket and Prop 47 de-felonized many marijuana crimes.

But California still charges over 8,000 people a year for marijuana felonies. California currently has prisoners serving time or still “on papers” (parole or probation) for their marijuana misdemeanors and felonies. Many Californians who’ve finished their sentences still have the “scarlet letter” of being a drug criminal on their permanent record that thwarts their opportunities for housing, education, and employment.

Prop 64 applies all its new penalty reductions and legalizations retroactively on the day it is passed. Convicts serving up to four years for their sales or cultivation felony would now have their record reduced to six-month misdemeanors or, in the case of a half-dozen or fewer plants, cleared of any wrongdoing whatsoever[63]. Not only does Prop 64 then lead to early release of pot POWs, they can then petition to have their records sealed[64], and if not, the state automatically expunges their records of possession and joint-passing violations after two years anyway[65] – removing the “scarlet letter”.

If you could tell a child his parent needs to stay in prison up to three years longer than necessary because you think Prop 64’s flawed and there might be better legalization in four years, well, I guess you’re the kind of person who’ll join cops in voting to maintain their power to put as many people as possible in prison for marijuana.

Don’t believe the paranoid scare mongering – Legalization always beats Prohibition, and California Legalization is our ace card to beat Federal Prohibition. Vote Yes on Prop 64 and send this article to your California friends who are falling for the Chicken Little arguments of prohibition profiteers who support the status quo where marijuana is just illegal enough to charge your $300 an ounce for it, but just legal enough for them to avoid raids and prison. Don’t help the cops keep ticketing, arresting, and imprisoning us over cannabis!

Footnotes below.

– – – –

Part one of Russ Bellville’s Top Ten Myths About Prop 64.

Read all of HIGH TIMES’ election coverage here.

Read all of HIGH TIMES’ coverage of the Prop 64 battle in California here.

And check out: 

The Mother of All Marijuana Votes! The Ultimate High Times Election Guide

Election 2016: Can Marijuana Sweep in All Nine States?

 

[38] §11357(b)(2) Persons 18 years of age or over who possess more than 28.5 grams of marijuana, or more than four grams of concentrated cannabis, or both, shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment.

[39] §11360(a) Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished as follows: (2) Persons 18 years of age or over shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment.

[40] §11360(b) Except as authorized by law, every person who gives away, offers to give away, transports, offers to transport, or attempts to transport not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of an infraction and shall be punished by a fine of not more than one hundred dollars ($100).

[41] §11362.3(a) Nothing in Section 11362.1. [Personal Possession & Cultivation] shall be construed to permit any person to: (2) Smoke marijuana or marijuana products in a location where smoking tobacco is prohibited. §11362.4 (b) A person who engages in the conduct described in paragraphs (2) through (4) of subdivision (a) of Section 11362.3. [Personal Use Restrictions] shall be guilty of an infraction punishable by no more than a two hundred and fifty dollar ($250) fine

[42] §11362(a) Nothing in Section 11362.1. [Personal Possession & Cultivation] shall be construed to permit any person to: (4) Possess an open container or open package of marijuana or marijuana products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

[43] §11362(a) Nothing in Section 11362.1. [Personal Possession & Cultivation] shall be construed to permit any person to: (8) Smoke or ingest marijuana or marijuana products while riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation…

[44] §26038(a) A person engaging in commercial marijuana activity without a license required by this division shall be subject to civil penalties of up to three times the amount of the license fee for each violation…

[45] Current H&SC §11357 “Possession of up to and including 28.5 grams of marijuana is an infraction punishable by a fine of $100. Possession of more than 28.5 grams is a misdemeanor punishable by up to 6 months’ imprisonment and/or a fine up to $500. If the amount possessed is 28.5 grams or less but the person is 18 years of age or older and the possession occurred on school grounds, the person is guilty of a misdemeanor punishable by up to 10 days’ imprisonment and/or a fine up to $500. If the offender was younger than 18 years of age, then the offense is a misdemeanor punishable by a fine up to $250 for the first offense and a fine up to $500 or commitment to a detention center for up to 10 days.” [Source: NORML]

[46] §11357(a) Except as authorized by law, possession of not more than 28.5 grams of marijuana, or not more than four grams of concentrated cannabis, or both, shall be punished or adjudicated as follows: (1) Persons under the age of 18 shall be guilty of an infraction and shall be required to [complete drug education and community service] (b) Except as authorized by law, every person who possession of more than 28.5 grams of marijuana, or more than four grams of other than concentrated cannabis, shall be punished as follows: (1) Persons under the age of 18 who possess more than 28.5 grams of marijuana or more than four grams of concentrated cannabis, or both, shall be guilty of an infraction and shall be required to [complete drug education and community service]

[47] §11358 Every person who plants, cultivates, harvests, dries, or processes marijuana plants, or any part thereof, except as otherwise provided by law, shall be punished as follows: (a) Every person under the age of 18 who plants who plants, cultivates, harvests, dries, or processes any marijuana plants shall be punished in the same manner provided in paragraph (1) of subdivision of section 11357. Possession.

[48] §11359 Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished as follows: (a) Every person under the age of 18 who possesses marijuana for sale shall be punished in the same manner provided in paragraph (1) of subdivision (b) of section 11357. Possession.

[49] §11360(a) Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished as follows: (1) Persons under the age of 18 years shall be punished in the same manner as provided in paragraph (1) of subdivision (b) of section 11357. Possession.

[50] §11357(a)(2) Persons at least 18 years of age but less than 21 years of age [who possess less than 28.5 grams of marijuana or less than 4 grams of concentrate] shall be guilty of an infraction and punishable by a fine of not more than one hundred dollars ($100). [Note: same penalty as now.]

[51] §11357(b)(2) Persons 18 years of age or over who possess more than 28.5 grams of marijuana, or more than four grams of concentrated cannabis, or both, shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment. [Note: same punishment for flower, but half the jail time for concentrate, as now.]

[52] §11359(b) Every person 18 years of age or over who possesses marijuana for sale shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment. [Note: this reduces a felony to a misdemeanor.]

[53] §11360(2) Persons 18 years of age or over [who illegally transport or gift marijuana] shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment. [Note: this reduces a felony to a misdemeanor.]

[54] §34019(f)(3) Twenty percent (20%) [of revenue remaining after costs and earmarks] shall be deposited into the State and Local Government Law Enforcement Account and disbursed by the Controller as follows: (A) To the Department of the California Highway Patrol for conducting training programs for detecting, testing and enforcing laws against driving under the influence of alcohol and other drugs… (C) To the Board of State and Community Corrections for making grants to local governments to assist with law enforcement, fire protection, or other local programs addressing public health and safety associated with the implementation of the Control, Regulate and Tax Adult Use of Marijuana Act….

[55] §34019(a) Before any funds are disbursed pursuant to subdivisions (b), (c), (d), and (e) of this section the Controller shall disburse from the Tax Fund to the appropriate account, without regard to fiscal year, the following: (1) Reasonable costs incurred…

[56] §34019(b) The Controller shall next disburse the sum of ten million dollars ($10,000,000) to a public university or universities in California annually beginning with fiscal year 2018-2019 until fiscal year 2028-2029 to research and evaluate the implementation and effect of the Control, Regulate and Tax Adult Use of Marijuana Act…

[57] §34019(c) The Controller shall next disburse the sum of three million dollars ($3,000,000) annually to the Department of the California Highway Patrol beginning fiscal year 2018-2019 until fiscal year 2022-2023 to establish and adopt protocols to determine whether a driver is operating a vehicle while impaired, including impairment by the use of marijuana or marijuana products, and to establish and adopt protocols setting forth best practices to assist law enforcement agencies….

[58] §34019(d) The Controller shall next disburse the sum of ten million dollars ($10,000,000) beginning fiscal year 2018-2019 and increasing ten million dollars ($10,000,000) each fiscal year thereafter until fiscal year 2022-2023, at which time the disbursement shall be fifty million dollars ($50,000,000) each year thereafter, to the Governor’s Office of Business and Economic Development, in consultation with the Labor and Workforce Development Agency and the Department of Social Services, to administer a Community Reinvestments grants program to local health departments and at least fifty-percent to qualified community-based nonprofit organizations…

[59] §34019(e) The Controller shall next disburse the sum of two million dollars ($2,000,000) annually to the University of California San Diego Center for Medicinal Cannabis Research…

[60] §34019(f)(1) Sixty percent (60%) shall be deposited in the Youth Education, Prevention, Early Intervention and Treatment Account, and disbursed by the Controller to the Department of Health Care Services for programs for youth that are designed to educate about and to prevent substance use disorders and to prevent harm from substance use….

[61] §34019(f)(2) Twenty percent (20%) shall be deposited in the Environmental Restoration and Protection Account, and disbursed by the Controller as follows: (A) To the Department of Fish and Wildlife and the Department of Parks and Recreation for the cleanup, remediation, and restoration of environmental damage in watersheds affected by marijuana cultivation and related activities… (B) …and to facilitate the investigation, enforcement and prosecution of illegal cultivation, production, sale, and use of marijuana or marijuana products on public lands… (C) …and to ensure the reduction of adverse impacts of marijuana cultivation, production, sale, and use on fish and wildlife habitats throughout the state…

[62] §34019(f)(3) Twenty percent (20%) shall be deposited into the State and Local Government Law Enforcement Account and disbursed by the Controller as follows: (A) To the Department of the California Highway Patrol for conducting training programs for detecting, testing and enforcing laws against driving under the influence of alcohol and other drugs, including driving under the influence of marijuana… (B) … education, prevention and enforcement of laws related to driving under the influence of alcohol and other drugs, including marijuana… (C) To the Board of State and Community Corrections for making grants to local governments to assist with law enforcement, fire protection, or other local programs addressing public health and safety associated with the implementation of the Control, Regulate and Tax Adult Use of Marijuana Act….

[63] §11361.8(a) A person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that Act been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing or dismissal…

[64] §11361.8(e) A person who has completed his or her sentence for a conviction under Sections 11357. Possession, 11358. Planting, harvesting, or processing, 11359. Possession for sale, 11360. Unlawful transportation, importation, sale, or gift, whether by trial or open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that Act been in effect at the time of the offense, may file an application before the trial court that entered, the judgment of conviction in his or her case to have the conviction dismissed and sealed…

[65] §11361.5(a) Records of any court of this state, any public or private agency that provides services upon referral under Section 1000.2 of the Penal Code, or of any state agency pertaining to the arrest or conviction of any person for a violation of Section 11357. Possession or subdivision (b) of Section 11360. Unlawful transportation, importation, sale, or gift, or pertaining to the arrest or conviction of any person under the age of 18 for a violation of any provision of this article except Section 11357.5, shall not be kept beyond two years from the date of the conviction, or from the date of the arrest if there was no conviction…

"Radical" Russ Belville hosts 'The Marijuana Agenda' on YouTube, a live weekday news/talk program all about cannabis. Learn more at MJAgenda.com.

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