Legalizing Marijuana

IMPACT OF POT PROPOSAL DEPENDS ON FEDERAL LAW

When California became the first state to legalize medical marijuana
in 1996, the federal government responded by closing down pot clubs,
prosecuting suppliers, threatening doctors who recommended the drug,
and successfully battling co-ops and patients in cases that reached
the U.S. Supreme Court.

So Assemblyman Tom Ammiano, author of a bill that would make
California the first state to legalize personal use of marijuana, is
going out of his way to avoid a fight with the feds.

Ammiano's longshot measure gained some traction last week when Gov.
Arnold Schwarzenegger said it was "time for debate" on whether the
state should allow sales of marijuana and use the tax revenue to help
close California's gaping budget deficit. The state Board of
Equalization has estimated that the bill's proposed $50-an-ounce
sales tax would raise $1.3 billion a year.

But Ammiano, D-San Francisco, isn't proposing to go that far. At
least not until the federal government repeals its 72-year-old ban on
possession, sale and cultivation of marijuana, or allows states to do
so. Personal cultivation only

If federal law remains unchanged, Ammiano's bill, AB390, would merely
repeal California's criminal penalties for personal cultivation and
possession of up to 10 marijuana plants. That means no retail sales,
no tax revenue and - the assemblyman hopes - no federal raids.

Only if, in the bill's language, "federal law permits possession and
sale consistent with this program," would the measure legalize
marijuana for adults 21 and older, with regulations like those that
apply to alcohol.

The cautious approach "acknowledges, to some extent, the reality we
have right now," said Quintin Mecke, a spokesman for Ammiano.

"I'm hard-pressed to imagine the (Drug Enforcement Administration)
being that interested in what is in someone's private home," Mecke
said. "I think they pay attention to major grow operations."

Federal officials would probably take a dim view, however, of state
legalization of storefront sales that defied U.S. law, Mecke said.
Backers cite polls

Nevertheless, some advocacy groups would like to go that route,
citing recent opinion polls that show increased support for their cause.

A Field Poll in late April found 56 percent of Californians surveyed
in favor of legalizing, regulating and taxing marijuana. Recent
national polls have reported more than 40 percent support for the
same position, and a nationwide Zogby Poll last week put support at 52 percent.

"In ever-increasing numbers, the citizens of this state are ready to
junk our failed prohibition policies, even if that means taking on
the feds," said Stephen Gutwillig, state director of the Drug Policy
Alliance. The voters, he said, are "way ahead" of public officials on
the issue.

If marijuana policy is to change, "it has to be the states moving
first," said Bruce Mirken, spokesman for the Marijuana Policy
Project. "Just like medical marijuana, the feds will be dragged along
by the states."

If legislative efforts fail, Mirken said, "I think you're going to
see more and more grassroots enthusiasm for an initiative." Two years
at earliest

Ammiano introduced AB390 in February but says he will not try to
bring it to a vote until next year, which means it could not take
effect until 2011. And its prospects have been dimmed by the
unyielding opposition of police organizations.

"We have alcohol, tobacco, pharmaceuticals. Why on earth would any
sane person want to add another mind-altering substance to the
available legal array?" said John Lovell, lobbyist for the California
Peace Officers Association, California Narcotics Officers Association
and California Police Chiefs Association. He said he welcomes the
debate suggested by Schwarzenegger because well-informed Californians
would oppose the bill.

If enacted, the measure would encounter the same federal-state
conflict that arose in 1996, when California voters passed
Proposition 215, legalizing the medical use of marijuana with a
doctor's recommendation.

Despite the federal ban on marijuana, Prop. 215 remains in effect and
has been a model for laws in 12 other states. Courts, however, have
ruled that when the state and federal laws collide, Washington prevails.

Supreme Court Rulings

The U.S. Supreme Court ruled in 2001 that federal authorities can use
their laws to shut down dispensaries that were operating legally
under Prop. 215, upholding a position first advocated by President
Bill Clinton's administration.

A year later, a federal appeals court rejected, on free-speech
grounds, a Clinton-initiated effort to cut off California patients'
marijuana supplies by revoking their doctors' federal prescription
licenses. That ruling did not affect federal raids or prosecutions,
however, and in 2005, the Supreme Court upheld the national
government's authority to enforce drug laws against marijuana
patients and their suppliers, rejecting states'-rights arguments.

As a presidential candidate last year, Barack Obama said states
should be allowed to enforce medical marijuana laws without federal
interference. His attorney general, Eric Holder, said on March 18
that the Justice Department would target traffickers who violated
both state and federal law, implying that Californians who complied
with Prop. 215 would be left alone.

Feds Still Chasing Cases

But federal prosecutors in California have continued to pursue cases
against locally licensed marijuana dispensaries. And, as Obama made
clear in an online town hall meeting March 26, any change in current
federal policy is limited to the medical use of marijuana.

Responding to numerous questions about raising tax revenue by
legalizing marijuana, the president said jokingly, "I don't know what
this says about the online audience." Then he added, "No, I don't
think that is a good strategy to grow our economy."

Mirken, of the Marijuana Policy Project, said it will take time to
persuade the federal government to let the state go its own way.

But if a bill like Ammiano's becomes law two years from now, as Obama
looks ahead to a re-election campaign, Mirken said, administration
officials contemplating a crackdown might be asking themselves, "Do
we really want to anger California?"

[sidebar]

WHAT THE POT BILL WOULD DO

. Decriminalize personal use, sale, possession and cultivation of
marijuana in California.

. If the federal ban on possession, cultivation and sale of marijuana
were repealed, the state would allow marijuana growers and sellers
and impose a $50-an-ounce tax.

Online: Read the text of AB390 at links.sfgate.com/ZHAG.