How we legalize marijuana, Part 3: The mixed, the indulgent, and misc.

This is part 3 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 mixed – racial equity issues

Good: no licensing shutout. As the fledgling legal marijuana industry has developed, it’s been obvious that the people flowing in are overwhelmingly white – not a characteristic of the preexisting industry. Looking at the Cannabis Business Executive’s top 100 influential people from 2014, every single one of the first 30 actual businesspeople on the list was white, and only five were even white women. This makes sense since it’s much riskier for a person of color to have their name out in the open as flagrantly violating federal law. If these processes continue unchecked, as the industry becomes more legal, safe, and profitable, it will be under whiter and whiter control, reinforcing inequality and structural racism.

One positive thing the Act does for racial equity is that it avoids shutting out anyone from the legal industry on the ground of past participation in the illegal industry. It’s normal for state licensure systems to exclude people with “substantially related” criminal records from licenses. For example, if you’ve committed fraud, you can never be an accountant. Does that mean people with any drug conviction history at all are shut out from getting marijuana business licenses, which would whiten the industry even more? No, says the Act – that would be wrong, since those old laws were themselves unjust. So the Act specifically says that a drug conviction on its own is not “substantially related” to licensed marijuana business activities and cannot be the sole ground for license denial. Of course it also doesn’t give a blanket pass to people convicted of anything drug-related; legitimate denial grounds include drug crimes involving violence, fraud or deceit, minors, growth on public lands, or dealing in very large amounts (over 1 pound) of harder drugs like cocaine, heroin, or meth. This is not a panacea for the problem, but it shuts off one obvious way structural racism could assert itself, and that is laudable.

Bad: criminalization cliff. Even with the significant reductions in penalties for non-possession marijuana offenses, there is still room for injustice. Both simple possession of over one ounce, and possession for sale of any amount, would be misdemeanors still earning up to 6 months in jail. It is a rather odd situation where possessing 0.99oz is perfectly legal, but 1.01oz is lock-you-up. Wouldn’t a fine for small amounts over the limit be more appropriate? (Yes, one ounce is a lot for personal use, but there’s still plenty of innocent reasons it could happen.) And possession for sale, as I mentioned in Part 1, has no minimum, and is likely to be applied disproportionately to people of color based on its loose definition. So that’s not great. But there will need to be some penalties, as another tool to limit the black market, however this works. And on the bright side, the Act doesn’t lock us in – it specifically gives the Legislature the authority to further reduce marijuana penalties by majority vote. So I think as we learn what legalization is like, we will tinker and build something that makes more sense.

Bad: priority to existing licensees. The Act specifically calls for the state to give licensing preference to applicants who have already been operating legally under state and, if any, local law (the medical use system). The preference goes away after 2019. This makes sense in theory – track record – but again a great whitening force in likely practice. The provision would be better gone.

The indulgent and the miscellaneous in the Act:
Organic designation. The Act doesn’t just allow but requires the Department of Food and Agriculture to allow marijuana to be certified organic just as with regular food. This is a marketing tool – not a bad thing, of course, but a sop to the industry.

Appellation of origin. The Act also requires the state to set up a naming control system, so that you can only put, say, “Humboldt” on your product if it’s actually from Humboldt County. Even more naked marketing, and decidedly silly.

Both organic and appellation standards will come out of license fee money, and it would be better for the Legislature to decide whether they makes sense to pay for, rather than lock in the obligation at the ballot.

Some spending choices. Most of the ways the Act requires its money be spent make sense, but they get rather penny-ante: for example, it gives $2m annually to the UCSD Center for Medicinal Cannabis Research to do, well, the name says it – and this earmark is prioritized ahead of spending on substance use treatment! I also find it a little odd that the greatest single category of spending is for youth substance use issues, explicitly saying adult substance use is not a priority unless there’s anything left over. But overall the spending choices make sense, such as paying to have public universities comprehensively study the impact of the Act over ten years and recommend changes to the regulatory structure.

Lounges. Not indulgent but merely interesting: whereas most legalization to date has banned public consumption, the Act allows cities at their option to license Amsterdam-style lounges where people can purchase and smoke socially. This opens up tourism opportunities, and one wonders which cities might take advantage of it. San Francisco? Oakland? Santa Cruz? (These lounges will not, however, be able to sell alcohol or tobacco alongside – no retailer can, in fact.)

Swipe at DARE. The text of the Act makes drug education or counseling the main penalty for minors under 18 convicted of marijuana offenses, but says these programs must be “based on science and evidence-based principles and practices specific to the use and abuse of marijuana and other controlled substances.” This confused me until I remembered the many, many studies on the Drug Abuse Resistance Education Program (DARE) over the years that showed it promoted myths and had no impact on teen drug use, or even led to more. So this new court-mandated service is not intended to inject money into programs like DARE unless they get better. (They may have started already; all those studies did have an impact over time, from what I’ve read.) So this part of the Act is a bit parochial, but sound.

Tomorrow, part 4: the bad.

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