Blowback

A FEDERAL-STATE LAW INCONSISTENCY SHOULDN'T STOP CALIFORNIANS FROM
LEGALIZING MARIJUANA

No Law Is Infallible. As It Has Done in the Past, California Can Show
Leadership in Driving Needed Reforms by Passing Proposition 19.

The law is the law. If we unquestioningly accepted that maxim,
imagine where we would be today. Jim Crow would be alive and well,
rivers and skies would be polluted, and women wouldn't be allowed to vote.

Yet such is the mindset of many of those who criticize Proposition
19, the marijuana regulation and taxation initiative on the November
ballot. In his July 18 Times Op-Ed article, UCLA public policy
professor Mark A.R. Kleiman declares that state legalization "can't
be done." He points out, correctly, that if the initiative is
successful, the federal marijuana prohibition laws will remain in
place. What he assumes, incorrectly, is that federal agents will
swarm into California, busting farmers and arresting distributors and
shopkeepers, to say nothing of the garden stores that sell them
equipment and supplies, the accountants who do their books and the
municipal tax officials who delight in assessing and collecting the
new tax revenues.

Kleiman might well have uttered, "The law is the law."

But the law is neither absolute nor infallible, and that's why
Californians can - and should - legalize, regulate and tax
marijuana-related commerce.

The federal-state dynamic concerning marijuana is not complicated.
Under our system of federalism, both the states and the feds may
prohibit commerce in marijuana, but neither is required to do so.
Similarly, during alcohol prohibition (1920-33), commerce in
alcoholic beverages was prohibited not only by federal law (the
Volstead Act) but by the laws of most states. In 1923, New York
repealed its state prohibition laws, leaving enforcement, for the
remaining 10 years, entirely to the feds. California voters
overwhelmingly did the same thing in 1932, one year before national
prohibition was repealed.

Let's think this through. If Proposition 19 passes, two important
balls roll into the feds' court. The first is that the sole
responsibility and expense of enforcing marijuana prohibition will be
shifted to them. After Nov. 2, marijuana "offenders" could be
arrested only by federal agents, prosecuted only under federal law,
and sentenced only to federal detention.

If the feds undertook this, cases involving simple possession cases
and small-time marijuana businesspeople, usually relegated to state
courts, would flood federal courthouses. But even with a drastic
increase in funding for federal enforcement, such activity would
barely put a dent in California's marijuana trade, and would fail to
stifle California's policy change, as the federal government has
failed to do since the first medical marijuana laws were passed 14
years ago. Moreover, justifying the invasion into a state's province
to undermine the will of the voters at such great expense to
taxpayers would be highly questionable, especially in the current
economic climate, not to mention a political climate that is at best
lukewarm on prohibitionist policies.

The second ball is even more significant. Voter approval of
Proposition 19 would shift to the feds the responsibility and burden
of justifying marijuana prohibition in the first place. Now, the
Washingtonians who have never questioned decades of anti-pot
propaganda can explain to the people of California why we cannot be
trusted to determine our state's marijuana policies. Let them endorse
the prohibition laws' usefulness as a tool of oppressing minorities.
Let them celebrate how minor marijuana violations cost people their
jobs, their housing, custody of their kids, and entrap them
permanently in vast criminal justice databases. Let them justify the
utter hypocrisy of the legal treatment of alcohol and tobacco, as
compared with the illegal treatment of marijuana. Let them tell us
how many more people will have to be prosecuted and punished before
marijuana is eradicated, how much that will cost, and where the money
will come from.

Proposition 19's success in November would put the feds in a
quandary, yes, but it is a quandary of their own making. Unlike
alcohol prohibition, which required a constitutional amendment,
Congress could fix this easily with a simple amendment to the
Controlled Substances Act allowing conduct legal under state law and
respecting the right of states to regulate and tax the cannabis
industry. After all, determining what is a crime is traditionally
handled at the state level; indeed, federal prosecutions of drug
possession make up a miniscule portion of overall drug arrests.

Instead of hewing to a misguided and unworkable federal hegemony in
this area, encouraging innovation at the state level would be a more
rational federal policy. And to be clear, legal scholars have long
disagreed with Kleiman's conclusion that the feds must and will
intervene to try to quell state action in this area.

States need not shrink from countering federal policy on marijuana.
California can show leadership in driving needed reforms, as it has
before. In other words, the law need not be the law if you're willing
to stick your neck out. Cautious academics and politicized public
employees will always embrace the status quo, joined by risk-averse
politicians who misconstrue a lack of constituent "noise" on this
issue as satisfaction with current law, not fear. But voters know better.

Not only can Californians regulate and tax marijuana, we should.

Hanna Liebman Dershowitz, an attorney in Los Angeles, is a member of
the Proposition 19 legal subcommittee.