How we legalize marijuana, Part 2: The good

This is part 2 of my series on the proposed Control, Regulate, and Tax Adult Use of Marijuana Act (“the Act”) that will likely reach the California ballot in November 2016. The series started hereThank you for reading.

The good: remove and reduce criminal penalties, clear criminal records, regulate and tax.

Penalties demolished. This is where any legalization initiative has the most impact on people’s everyday lives – changes to the criminal code itself. Today, simple possession of up to one ounce of marijuana without a medical card is an infraction offense, with a fine of $100, but many other acts relating to marijuana are felonies that can lead to years in state prison. The Act makes personal possession of under one ounce, as well as the personal cultivation of up to six plants, completely legal for those 21 and over. Minors get community service and drug education for possession; 18-to-20-year-olds merely get fined. Most types of commerce (sale, transport/possession for sale, cultivation over the limit) are downgraded from felony to misdemeanor status, with much less jail time or fines. None of these penalties apply, of course, to businesses that are duly licensed.

There would still be many constraints around personal use. No smoking or ingesting in public places, unless locally permitted. No smoking within 1,000 feet of schools or daycares except in private homes. All the existing laws about where you can’t smoke tobacco would carry over for smoking marijuana – that means most workplaces, restaurants and bars, schools, apartment common areas, foster homes, etc. And no open containers in vehicles, much less driving under the influence.

Release and record-clearing. Not many people are lengthily imprisoned for simple, nonviolent marijuana offenses in California these days, although any is too many. But many more have been convicted over the decades, which ruins their future lives even if they didn’t get jail time. The Act recognizes this is absurd and disparate considering our culture has tacitly accepted marijuana as harmless (for its privileged people) for decades now. So the Act allows people who previously committed marijuana crimes to be resentenced or released as appropriate under the new laws. If they are out of jail by now, their convictions can be dismissed and records sealed. A judge can keep people serving their sentence if they find, based on their record or other factors, that releasing them would be an unreasonable risk to public safety, but not otherwise. This is a huge slate-cleaning policy, likely restoring the records of tens or hundreds of thousands of people, disproportionately people of color. It is a critical counterpart to prospective legalization, and one of the most important aspects of this Act.

Statewide commercial regulations. The Act would erect a huge edifice of statewide commercial marijuana regulations, bringing the whole process out from underground, from seed to spliff. There would be license categories for cultivators, distributors, manufacturers, testers, and retailers, all of which would have to apply to the state and be held to an array of standards (more on this below). Some will complain that the structure means significant barriers to entry for small businesses, and that is true, but these barriers are fairly warranted: they will cover environmental protection, product testing and labeling, worker protection, security, and so on, just as other businesses are held to standards appropriate to what they do. Localities (cities or counties) will have the option to set up their own standards and license systems, and the state will have to respect those decisions.

Taxation and investment priorities. There will be special taxes on recreational marijuana at two main points: a tax on cultivation of $9.25 per dry ounce of flowers, and a 15% tax at retail. This can collect a lot of money to be put to good use, but beware overpromising: it will not be enough money to shore up the state’s budget in any major way. Once the system gets up and running, the Legislative Analyst’s Office has predicted, it might generate as much as $1 billion a year, but that’s against a state budget of over a hundred times that.

The Act goes on to predetermine how the money will be spent, as most initiatives involving taxes do. The biggest beneficiary would be youth substance use education, prevention, and treatment, which cause would take 60% of the revenues after a range of initial smaller items are paid for. Significant amounts would also go to the environment, law enforcement, and grants for communities disproportionately affected by the drug war (job training and placement, legal services, mental health and substance use services). The ordinary sales tax revenue would not be spoken for, going to education, health, criminal justice, and local governments just as it does today.

Significant extra taxes make sense not only because the resulting revenue can be put to good use, but because marijuana is not something like clothing, entertainment, or food where our starting assumption is that low prices and high availability are good things. Marijuana is far from being as unhealthy as tobacco or alcohol, but it is unhealthy – excessive use can lead to bronchitis, emphysema, cardiovascular problems, even possibly some types of cancer or schizophrenia, and while it has low potential for actual addiction, people can still abuse it and get caught up in vicious cycles. You sometimes hear “it’s so widely available already, things won’t change a bit with legalization,” but expert consensus is no, it probably would be at least somewhat more used – not only will it be easier to get, but the prices will drop. This has health and economic effects we should try to curtail, and a tax is one of the most efficient ways to do this; it keeps the price from bottoming out and raises money to combat the negative effects. Too high and you get a black market for the sake of tax evasion, but this level in the Act is reasonable. (It also helps that this tax is spread out across both cultivation and retail, reducing the payoff from tax evasion at either stage.)

Testing and labeling. One disadvantage of marijuana production and distribution mostly being illegal is that it can be difficult to be sure of the contents or safety or what they are buying. The Act would mandate all marijuana batches receive independent testing for concentration, mold, pesticides, contaminants, etc., by independent testers with no financial interest in the results. It would require labeling potency in terms of THC and other cannabinoid content; edibles would have to be clearly marked out into servings with a standard THC content of 10 grams each; edible packages must be resealable and not attractive to children. So no more dowding; people will know what they’re ingesting, and have some level of confidence that there is a similar level of safety as in regular food. Also, the ability to reliably tell apart the different active ingredients (THC, cannabidiol, cannabigerol, there are many) could take the industry in innovative directions, where they can better identify which products may have more antinausea effects, which may have more effect on appetite, etc.

Truth in advertising and targets of advertising. Advertising will have to be truthful and in particular avoid both directly untrue and merely misleading statements on products’ health effects – a good idea considering the coterie out there that sees cannabis as the solution to all humanity’s ills. There are also many safeguards against advertising reaching minors directly or indirectly: no Joe Camel-style techniques, for example. No advertising at all might be better, but the restrictions here make sense.

So all I’ve written about above a great step forward, the bulk of why I support the Act. But there is a fair amount about the Act that’s not as great. Tomorrow, Part 3: the mixed (racial equity) and the indulgent and miscellaneous.

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