Penalties under AUMA / Prop 64: the full rundown

With the Adult Use of Marijuana Act (AUMA) now qualified for the November 2016 ballot in California and renamed to Proposition 64, I see a lot of confusion out there on how, exactly, it would change legal penalties for marijuana. I touched on the the subject in my 6-post blog series, but not in depth. I am writing now to try to provide a comprehensive resource on exactly how it changes criminal law in California. I also have some observations to make on what it implies for racial and socioeconomic equity in the justice system.

The main part of this work is tables summarizing what penalties apply for various marijuana crimes currently, compared to what penalties would apply under Prop 64, so that everything is clearly stated, with legal citations you can follow. (The current law code database is here, and a clean, searchable PDF text of Prop 64 from its campaign website.)

My major caveat is that I am not a lawyer; I am a policy analyst with what I like to think is a decent lay ability to read, research, and interpret statute. I am open to corrections (email me here).

Some other cautionary notes on the below analysis:

  • Current California law has higher penalties some of the time for more than 28.5 grams, or one ounce, of dried marijuana; the higher penalties also apply to any amount of concentrated cannabis (hash, oil, etc.). Prop 64 continues to keep a dividing line for many purposes at one ounce, but it also sets a new dividing line allowing smaller amounts of concentrated cannabis, calling it analogous to a dried ounce. However, there was a drafting error, drawing the line at 4 grams in most places but 8 grams in one important place; the Legislature will have to fix this. For brevity, I will refer to “1oz” as the dividing line and not address concentrated.
  • I do not have data to say how often the penalties specified in law are actually applied, or how often they are plea-bargained to lesser charges, or how much discretion judges have to apply lower sentences; however, those official penalties are still the biggest quantifiable factor a reasonable person might consider in judging risk, so they are my main focus.
  • Drug laws often do not set out separate sentences for minors, making it appear as if a child could be sentenced to years in state prison for, say, selling marijuana; in fact, the juvenile justice system is a good deal more lenient, with many opportunities to apply remedies short of incarceration (counseling, diversion, informal probation, etc.). But detention is still possible and it is still not a good process for a minor to go through. Occasionally, it might be possible for a repeat-drug-offending minor to be tried as an adult (if 16 or older and if gangs are involved). Prop 64, by contrast, establishes much lower penalties for minors for most marijuana crimes. Due to the complexity, I will refer to current sentences for minors using the all-ages sentences as they are written in law.
  • California cannot prevent federal law enforcement from enforcing the Controlled Substances Act, but it is not obliged to copy or enforce those laws itself. So far, the federal government has opted not to crack down on possession or commerce in legalizing states like Colorado and Washington. Federal penalties are not discussed in this post.
  • HSC = Health and Safety Code; VEH = Vehicle Code, BPC = Business and Professions Code. Legal code numbers are sections of HSC unless otherwise specified (either as in current law or as amended by Prop 64).
  • A fine described in law as $100 may in practice be as much as several hundred dollars after surcharges and fees have been added.

1. Possession and use

The only type of marijuana possession made absolutely legal and without penalty under Prop 64 is simple possession of one ounce or less by adults 21 and up (lower cutoff for concentrated cannabis). Currently, that offense is neither a felony nor a misdemeanor, but an infraction (basically a ticket) with a fine of $100.

Adults aged 21 and up:

Simple possession without complicating factors
<=1oz, but on K12 school grounds during school/program hours
Smoking or ingesting marijuana in a public place, except as locally licensed
Smoking marijuana in places where tobacco is prohibited*, or within 1,000 feet of a school or day care/youth center**
Having open container of marijuana in vehicle while operating it
DUI
<=1oz >1oz
Current law Infraction, $100 fine
11357(b)
Misdemeanor, $500 and/or 6 mos. jail
11357(c)
Misdemeanor, $500 / 6 mos. jail
11357(d)
No separate penalty from simple possession – for <=1oz, $100 infraction No separate penalty from simple possession – for <=1oz, $100 infraction No separate penalty from simple possession – for <=1oz, $100 infraction Misdemeanor to start, compoundable – same system for alcohol as for drugs
VEH 23152
Prop 64 Fully legal
11362.1(a)(1)
Misdemeanor, $500 / 6 mos. jail
11357(b)(2)
Unless excess is product of one’s own legal plants
11362.1(a)(3)
Misdemeanor
First offense: $250
Further offenses: $500 / 10 days jail
11357(c)
Infraction, $100
11362.4(a)
Infraction, $250
11362.4(a)
Infraction, $250
11362.4(a)
No change

* Places where tobacco is prohibited in California include restaurants, bars, workplaces, theaters, public meeting areas, etc.

**Except in private residences or as locally licensed, but even in those cases, smoking must still be detectable on school/center grounds.

Note that Prop 64 creates some new crimes, such as smoking in a public place, but these were previously punishable as simple possession. In the case of smoking where tobacco is prohibited, near a school, or having an open container, the applicable fine actually increases from $100 to $250; however, the crime remains an infraction.

Smoking does include vaping, as defined in 11362.3(c).

Obviously, possession, sale, etc. in larger quantities by businesses licensed under Prop 64’s new commercial regulatory structure is not illegal; BPC 26037.

Since Prop 64 establishes 21 as the legal age for marijuana use, simple possession remains illegal for all those under 21, but with different penalties for true minors (under 18) versus those 18 to 20 years old, who I will call “quasi-adults” from now on in this post. For the quasi-adults, most of the penalties are the same as for full adults, except that simple possession of <1oz remains a fineable infraction.

Quasi-adults (18-20):

Simple possession without complicating factors
<=1oz, but on K12 school grounds during school/program hours
Smoking or ingesting marijuana in a public place, except as locally licensed
Smoking marijuana in places where tobacco is prohibited, or within 1,000 feet of a school or day care/youth center
Having open container of marijuana in vehicle while operating it
DUI
<=1oz >1oz
Current law Infraction, $100 fine
11357(b)
Misdemeanor, $500 and/or 6 mos. jail
11357(c)
Misdemeanor, $500 / 6 mos. jail
11357(d)
No separate penalty from simple possession – for <=1oz, $100 infraction No separate penalty from simple possession – for <=1oz, $100 infraction No separate penalty from simple possession – for <=1oz, $100 infraction Misdemeanor to start, compoundable – same system for alcohol as for drugs
VEH 23152
Prop 64 No change
11357(a)(2)
Misdemeanor, $500 / 6 mos. jail
11357(b)(2)
Misdemeanor
First offense: $250
Further offenses: $500 / 10 days
11357(c)
Infraction, $100
11362.4(a)
Infraction, $250
11362.4(a)
Infraction, $250
11362.4(a)
No change

For minors under 18 years old, Prop 64 sweeps away existing penalties for almost all offenses in favor of drug education or counseling as appropriate, combined with community service. The number of hours varies by offense, but Prop 64 essentially does not contemplate incarceration for these offenses, even if repeated, although the amount of education or community service may increase.

In the below tables, for minors, “D” is my abbreviation for hours of drug education or counseling, while “S” stands for hours of community service.

Minors (under 18):

Simple possession without complicating factors
<=1oz, but on K12 school grounds during school/program hours
Smoking or ingesting marijuana in a public place, except as locally licensed
Smoking marijuana in places where tobacco is prohibited, or within 1,000 feet of a school or day care/youth center
Having open container of marijuana in vehicle while operating it
DUI
<=1oz >1oz
Current law Infraction, $100 fine
HSC 11357(b)
Misdemeanor, $500 and/or 6 mos. jail
11357(c)
Misdemeanor
First offense: $250
Further offenses: $500 / 10 days detention
11357(e)
No separate penalty from simple possession – for <=1oz, $100 infraction No separate penalty from simple possession – for <=1oz, $100 infraction No separate penalty from simple possession – for <=1oz, $100 infraction Misdemeanor to start, compoundable – same system for alcohol as for drugs
VEH 23152
Prop 64 Infraction
First offense: 4D/10S
Further offenses: 6D/20S
11357(a)(1)
Infraction
First offense: 8D/40S
Further offenses: 10D/60S
11357(b)(1)
Infraction
First offense: 8D/40S
Further offenses: 10D/60S
11357(d)
Infraction, 4D/10S
11362.4(a)
Infraction, 4D/20S
11362.4(b)
Infraction, 4D/20S
11362.4(b)
No change

2. Cultivation, manufacturing, and processing

Cultivation is harshly punishable under current law in California, no matter how small the amount; there is the medical exception under Proposition 215, which I will get into below, but by default it is a felony, with state prison time. Prop 64 allows home gardens of 6 plants for those 21 and up, but with certain restrictions.

Adults: 

Simple cultivation, processing, manufacturing <=6 plants but not kept sufficiently private (visible to outside, or not locked up) Manufacture of concentrated cannabis with volatile solvents
<=6 plants >6 plants
Current law Felony, 16-36 mos. prison
11358
Felony, 3-7 years and $50,000
11379.6(a)
Prop 64
Fully legal
11362.1(a)(3)

[Additional local restrictions possible]

Misdemeanor, $500 / 6 mos. jail
11358(c)
Felony with 16-36 mos. prison possible based on prior convictions or environmental harm
11358(d)
Infraction, $250
11362.4(e)
Unchanged (as noted in 11362.4(d))

By default, non-medical home gardens will be required to be kept in a locked space “not visible with normal unaided vision from a public place,” whether indoor or outdoor, and the same restriction applies to any harvest of those plants over 1 ounce. The 6-plant limit is per residence, not per person.

Prop 64 explicitly gives localities – cities or counties – the power to make additional “reasonable” local regulations on home grows. For example, a city could impose electrical safety standards for indoor grows. A city could also completely ban outdoor grows; however, Prop 64 explicitly prevents localities from banning indoor grows that meet the privacy, security, and number-of-plant requirements above (11362.2(b)(2)). (This is more protection from local bans than exists for medical patients now, as I will discuss below.)

Note that the penalty for oversize grows can be a misdemeanor taking you to county jail, or a felony for state prison in more serious cases; from the word “may”, that decision appears to be partially up to the prosecutor, but not entirely. In the case of cultivation over the limit, the conditions that can make the crime a felony include: having a previous conviction for murder, attempted murder, sexual violence, or sex with minors under 14; being a registered sex offender; having two or more prior convictions for illegal cultivation; or if the cultivation creates significant environmental harm, such as illegal water diversion, water pollution, dumping hazardous waste, or taking endangered species. We will see other felonies converted to such variable misdemeanor-or-felony status elsewhere in Prop 64.

For quasi-adults, home gardens within the same plant-number and privacy limits will be punished leniently, with the same $100 infraction as for low-level possession.

Quasi-adults:

Simple cultivation, processing, manufacturing <=6 plants but not kept sufficiently private (visible to outside, or not locked up) Manufacture concentrated cannabis with volatile solvents
<=6 plants >6 plants
Current law Felony, 16-36 mos.
11358
Felony, 3-7 years and $50,000
11379.6(a)
Prop 64 Infraction, $100
11358(b)
Misdemeanor, $500 / 6 mos. jail
11358(c)
Felony with 16-36 mos. possible based on prior convictions or environmental harm
11358(d)
Infraction, $250
11362.4(e)
Unchanged
11362.4(d)

For minors, again, Prop 64 provides for non-incarceration penalties only.

Minors:

Simple cultivation, processing, manufacturing <=6 plants but not kept sufficiently private (visible to outside, or not locked up) Manufacture concentrated cannabis with volatile solvents
<=6 plants >6 plants
Current law Felony, 16-36 mos.
11358
Felony, 3-7 years and $50,000
11379.6(a)
Prop 64 Infraction
First offense: 8D/40S
Further offenses: 10D/60S
11358(a)
Unchanged
11362.4(d)

3. Commerce

Under current law, “possession for sale” of any amount, however small, is still a full felony, not subject to the $100 infraction penalty, and my reading suggests that relatively innocent factors, such as having product in multiple small bags, may often be taken as evidence of intent to sell, which seems like a recipe for disparate racial treatment. Actual sale of any amount is also a full felony. Prop 64 cuts all these penalties back significantly, while keeping in place protections against involving minors, and adding one about involving quasi-adults. Most of the revised penalties are identical for adults and quasi-adults.

Adults and quasi-adults:

Possession for sale Sale Transportation for sale
Simple (unlicensed) In general (unlicensed) Involving in sale, or selling to, minor <14 <=1oz >1oz
Current law Felony, 16-36 mos.
11359
Felony, 2-4 yrs.
11360
Felony, 3-7 years
11361(a)
Misdemeanor, $100
11360(b)
Felony, 2-4 yrs.
11360
Prop 64 Misdemeanor, $500 / 6 mos.
11359(b)
Felony with 16-36 mos. possible with prior convictions, selling to minors <18, or hiring/using minors <21 in the sale
11359(c) and (d)*
Misdemeanor, $500 / 6 mos.
11360(a)(2)
Felony with 2-4 yrs possible with prior convictions, selling to minors <18
11360(a)(3)
Unchanged Infraction, $100
11360(b)
Misdemeanor, $500 / 6 mos.
11360(a)(2)
Felony with 2-4 yrs possible with prior convictions or crossing state lines
11360(a)(3)

*To be charged with a felony for involving someone less than 21 in the sale of marijuana, an offender must be at least 21.

Minors:

Possession for sale Sale Transportation for sale
Simple (unlicensed) In general (unlicensed) Involving in sale, or selling to, minor <14 <=1oz >1oz
Current law Felony, 16-36 mos.
11359
Felony, 2-4 yrs.
11360
Misdemeanor, $100
11360(b)
Felony, 2-4 yrs.
11360
Prop 64 Infraction
First offense: 8D/40S
Further offenses: 10D/60S
11359(a)
Infraction
First offense: 8D/40S
Further offenses: 10D/60S
11360(a)(1)
Infraction, probably 8D/40S (or $100 fine?)
11360(b)*
Infraction
First offense: 8D/40S
Further offenses: 10D/60S
11360(a)(1)

* Prop 64’s section 11360 is confusing in its application to minors. 11360(a)(1) says that minors are given drug counseling/education and community service for sale, giving away, or transport for sale; following that, 11360(b) says that transport-for-sale of <1oz is is an infraction with a $100 fine, and makes no distinction by age. Which of these two takes precedence? One is more specific about the offender’s age, while the other is more specific about the amount of marijuana involved. I suspect it is the lower no-fine penalty that should prevail, because otherwise you would have the absurd result that transport for sale has a fine if the amount is smaller, and no fine if larger. But this may be something the Legislature will need to clarify. In any case, both penalties are lighter than the status quo.

4. Giving away

Adults

<=1oz to adult >1oz to adult or quasi-adult <=1oz to quasi-adult Any amount to minor 14-17 Any amount to minor <14
Current law Misdemeanor, $100
11360(b)
Felony, 2-4 yrs.
11360
Misdemeanor, $100
11360(b)
Felony, 3-5 years
11361(b)
Felony, 3-7 years
11361(a)
Prop 64 Fully legal
11362.1(a)(1)
Misdemeanor, $500 / 6 mos.
11360(a)(2)
Felony with 2-4 yrs possible with prior convictions or crossing state lines
11360(a)(3)
Infraction, $100
11360(b)
Unchanged Unchanged

Note that giving marijuana away is not banned as some scaremongers are saying; 11362.1(a)(1) specifically allows it within the above framework. There is language in other sections of Prop 64 that some bloggers and tweeters are overreading, prohibiting licensed retail and other businesses from selling at less than cost, or giving away, when “for the purpose of injuring competitors or destroying competition” (BPC 26052(a)(6)). If certain dispensaries like to give some of their product away to the needy as charity, such programs may need restructuring to make clear they are not a loss-leader ploy to drive others out business; but private individuals would be free to give away as they see fit, as long as they keep each gift under one ounce, and recipients at least 21.

Another note is that 11362.1(a)(1), which legalizes adults giving small amounts to each other, specifies “with no compensation whatsoever” – so theoretically if one adult legally buys on another’s behalf and is reimbursed at cost, that does not fall under “giving”, and could be prosecuted.

Quasi-adults:

<=1oz to adult or quasi-adult >1oz to adult or quasi-adult Any amount to minor 14-17 Any amount to minor <14
Current law Misdemeanor, $100
11360(b)
Felony, 2-4 yrs.
11360
Felony, 3-5 years
11361(b)
Felony, 3-7 years
11361(a)
Prop 64 Infraction, $100
11360(b)
Misdemeanor, $500 / 6 mos.
11360(a)(2)
Felony with 2-4 yrs possible with prior convictions or crossing state lines
11360(a)(3)
Unchanged Unchanged


Minors:

<=1oz to adult or quasi-adult >1oz to adult or quasi-adult Any amount to minor 14-17 Any amount to minor <14
Current law Misdemeanor, $100
11360(b)
Felony, 2-4 yrs.
11360
Misdemeanor, $100
11360(b)
Felony, 2-4 yrs.
11360
Prop 64 Infraction
First offense: 8D/40S
Further offenses: 10D/60S
11360(a)(1)*
Infraction
First offense: 8D/40S
Further offenses: 10D/60S
11360(a)(1)
Infraction
First offense: 8D/40S
Further offenses: 10D/60S
11360(a)(1)*
Infraction
First offense: 8D/40S
Further offenses: 10D/60S
11360(a)(1)

*The confusing sections on transport for sale of less than one ounce described above also apply to gifting of less than one ounce. Again, I am assuming that (a)(1) supersedes (b), meaning the penalty is drug education/counseling and community service instead of a $100 fine.

5. Policing and racial impacts

Legalizing marijuana has often been trumpeted as close to ending the drug war, at least where marijuana is concerned, and as a huge step forward making the criminal justice less racially disparate. In my last post series, I spoke somewhat loosely in that way, calling Prop 64 a great step for racial justice. After more research, I still think Prop 64 will be a positive force, but I am more cautious and qualified in saying this.

Workers for racial justice are noticing that in Colorado, marijuana arrests, while significantly down post-legalization, are still made at quite different rates for Black versus white people. For minors of color, arrest rates have actually increased since legalization, presumably as resources have been focused on the places where they are. Minors are being fined large amounts and then made to pay for their required drug education. This is consistent with the ACLU and Drug Policy Alliance recently finding that even with the  $100 infraction penalty in California for simple possession, Blacks and Hispanics are being ticketed at much higher rates than whites.

It is easy to see how people of color will still be more at risk of the remaining penalties under Prop 64, because privilege is relevant in a thousand different ways. Prop 64 does not affect the ability of landlords to ban marijuana use in apartments, just as it does not force employers to stop drug-testing. Which makes sense, on its own, because it’s about ending the law-enforcement war on marijuana, not about creating social equality for marijuana users. It continues to penalize various kinds of inappropriate use – use in public, driving impaired, sharing with children. Which also makes sense, on its own, because the public does not want to see that behavior rise. (It is telling that the only penalty it increases is for smoking where prohibited, which goes up from $100 to $250.) But all these aspects, each making sense on their own, combine to perpetuate systematic disparity. People who rent rather than own are likely to lack places to safely consume marijuana, and in communities of color there will be more police eyes ready to flag small violations. Prop 64, in its majestic equality, forbids the rich as well as the poor, white people as well as people of color, to smoke outdoors!

Also, a large percentage of tickets are today being handed out to people under 21 (more than 40% to 16-to-21-year-olds in LA in the ACLU/DPA data), so those offenders will still be targets of police activity – potentially more than today, if policing is further targeted at the schools and communities where these minors and quasi-adults are.

So Prop 64 is not without risks, as seen in the case of Colorado. The drug war may have been spawned as a racial-political tool, but disparate policing does not begin and end at the drug war: systemic racism extends to most people’s actions and reactions, including those of the police and the courts, and so there is disparity in treatment with drug offenses but also with traffic offenses, public order offenses, and violent offenses. There is a limit to how much Prop 64 alone can do, as long as it is conceived of purely as legalization of private marijuana use, and as long as it is aiming for majority public support. Prop 64 is trying to clearly demonstrate to the median voter that it continues to penalize “quality of life” violations like public smoking or possession on school grounds, no matter how problematic the broken-windows policing strategy associated with those offenses is.

Despite all this, I still think Prop 64 is a significant step forward on balance for racial justice, for the following reasons:

  • Even if enforcement remains disparate, eliminating or lessening penalties at this scale is still meaningful improvement, because it means many thousands fewer arrests, fines, or convictions for people of color a year. In Colorado, the marijuana possession arrest rate for Black people of all ages went from 398 per 100,000 in 2012 to 305 per 100,000 in 2014; that’s still unacceptably higher than the new white arrest rate of 105, but it’s still a major drop, and it means many more lives and livelihoods no longer disrupted or threatened for minor violations.
  • For minors in particular, the improvements from legalization should be more substantial in California than they were in Colorado, because Prop 64, as my tables show above, explicitly stops fining minors for possession or for other marijuana crimes (possibly because groups like NAACP were at the table developing it). Also, the education or counseling it mandates is required to be free of charge, which avoids piling up more and more fines and fees on people of color, preventing these families from building wealth over time, a problem not limited to places like Ferguson salient in California and nationwide.
  • Prop 64 not only reduces penalties for most marijuana offenses, it will let hundreds or thousands or people out of jail or prison by retroactively applying the reduced penalties, and it will erase felony records for thousands more who have been convicted and released over the years.
  • By legalizing basic marijuana possession, it will be harder for police to use the commonness of marijuana as a lever to intrude in people’s lives; opening a front door and smelling or seeing marijuana, for example, should not normally give probable cause to enter and search. (Specified in 11362.1(c). Traffic stops will probably not be very different, though.) It will also further limit the scope for the major injustice that is asset forfeiture.
  • Prop 64 is very hospitable to further reducing legal penalties over time. I will go into this more below.
  • Even if Prop 64 somehow established a structure that lent itself to perfect equity in enforcement, that would only extend to the small part of the criminal justice system dealing with marijuana. Tactically, it makes more sense to me to pursue justice reform in an across-the-board way, so that steps forward also encompass violent crime, property crime, public order offenses, and other areas.
  • By pointing us toward a more rational structure for handling marijuana, Prop 64 will also make it easier for society to move over time to handle other drugs medically rather than criminally; these laws, too, have a heavily disparate impact.
I fear that a measure that inherently avoided all potential for disparate treatment in marijuana would basically have to get rid of all criminal disposition of marijuana, which would have a much harder time at the ballot box – who is going to vote for something that antis can tar as letting people toke on the streets, let pot take over the schools, let pushers operate with impunity? And if Prop 64 fails, it will not be replaced with something better: it may, in fact, lead to a backlash, with the media newly focusing on the downsides of legalization, and the federal government (even under a Democrat) changing its mind about allowing experimentation. Full legalization is not inevitable – people thought it was in the 1970’s, when California first decriminalized small amounts of marijuana, and then there was a reversal. Racial equity needs to be fought for on multiple fronts, and Prop 64 would be a moderate victory building momentum, but it cannot be a self-contained solution: the perfect is definitely the enemy of the good when it comes to California’s arcane political structure.
I also recognize that I am sound a bit like the white liberals MLK wrote about from Birmingham jail – forever advising activists to “wait for a more convenient season”. I do understand if, on the basis of the likely limited effect of Prop 64, racial-justice advocates like those in the Black Lives Matter constellation prefer to focus their energies elsewhere. But I do hope they will still acknowledge the measure is definite progress, vote yes, and recommend “yes” votes to others if it comes up.

6. Medical exceptions

There is misinformation going around that Prop 64 assaults the rights of medical marijuana patients under the Compassionate Use Act of 1996 (CUA), or Proposition 215, the first-ever medical marijuana initiative. This seems to be rooted in the popular misconception that the CUA is a get-out-of-jail-free card for anything a medical patient may do, tantamount to full legalization for them. (Actual quote from an SF dispensary guy: “Prop 215 is beautiful. It’s all we need.”) Specifically, there is a belief that Prop 64 takes away patients’ rights under CUA to possess than one ounce or cultivate more than six plants. (For example, this OC Register article, which reports on this fear among activists but leaves readers with uncertainty over whether the fear is grounded, despite quoting Americans for Safe Access stating clearly that it is not.) There is also the idea that it gives cities and counties – those in the less liberal parts of California that have always chafed under CUA – more avenues to restrict medical marijuana activity. On closer examination, these complaints are highly misleading, because CUA is actually remarkably narrow in what it does on its own.

CUA did not legalize or even really decriminalize marijuana; it remains a criminal offense under state law, but the CUA established a legal defense on the basis of having a doctor’s recommendation.  For years after it was passed, people could still be hauled into court and have to pay a lawyer to prove their use was medical (at a full trial or, after 2002, at a pretrial hearing). Now, largely thanks to Senate Bill 420 of 2004 (yes, ha-ha, we get it), we have the medical card system, where counties issue cards that confirm physician recommendations and can protect medical users from arrest. And under the extremely flimsy legal fiction that they are acting as patients’ primary caregivers, marijuana dispensaries have sprung up around the state, some locally licensed and regulated, usually as nonprofits based on additional provisions under SB420. 2015’s Medical Marijuana Regulation and Safety Act (MMRSA) went further, starting movement toward a full statewide regulation system allowing for-profits, much as Prop 64 does for recreational marijuana.

But that is not the full story on local bans. In 2011, the city council of Live Oak, a city north of Sacramento, voted to ban all cultivation of marijuana, regardless of medical patient status. In 2013, in Maral v. City of Live Oak, an appeals court ruled that the CUA made marijuana possession and cultivation legal only under state law, and did not prevent localities from banning it on their own authority. The State Supreme Court let that decision stand. Right after that decision, the Fresno County Board of Supervisors, feeling its oats, banned cultivation just as broadly, and what’s more, made violation of the ban a criminal misdemeanor. The ACLU sued, and just last December, in Kirby v. Fresno, an appeals court let the ban stand, deciding that adding a new criminal misdemeanor was a step too far, but that Fresno was still free to ban all cultivation as a “public nuisance”. Again, the Supreme Court has declined to intervene. (Even their striking down of the misdemeanor offense was based on a provision in SB420, not the CUA.) Many other localities are eager to exercise this power.

Cities and counties are also completely free to ban dispensaries under existing legislation and precedent. This was confirmed by the Supreme Court in Riverside v. Inland Empire Patients Health & Wellness Center in 2013, and even codified by the Legislature in the recent MMRSA. The CUA provides no safeguards for dispensaries against hostile local governments; if advocates want such safeguards, they will need to fight for additional state laws. But under Prop 64, advocates will be free to continue this fight, since its provisions explicitly do not supersede the CUA or medical-use laws (as specified in 11362.3(f) and 11362.45(i)) – that is, it does not make six plants the limit for medical growers, just recreational growers.

In short: the CUA does not prevent local bans of either cultivation or dispensaries. It may be common to encounter dispensaries, or cultivation at a scale above the personal, but that is mostly due to a combination of local tolerance, which is variable, and legislative victories by advocates over and above CUA. In a hypothetical world where all politicians had remained as hostile to marijuana as the Fresno County Board of Supervisors is today, and the CUA were still the only law at all friendly to medical marijuana (if there had been no SB420 or follow-ons), cultivation of more than a few plants would be a major legal risk despite CUA, and there would be no dispensaries anywhere. All because of how narrow the CUA really is. For any marijuana advocates to act like reliance on CUA is an acceptable alternative to legalization is baffling.

The “enclosed home garden” right to cultivation under Prop 64 is also resistant to local bans in a way CUA is not. Prop 64’s text says its authorized levels of recreational possession and cultivation “shall not be a violation of state or local law”, and explicitly prevents places like Fresno from banning indoor home gardens. The content and severity of reasonable additional regulations localities may impose will no doubt be a new source of contention. But bottom-line, even for medical patients, Prop 64 will be an expansion of rights, not a contraction.

(And that’s not to speak of how much it might benefit medical patients to be able to buy on the recreational market, since prices in that system will likely fall much lower than today’s over time.)

7. The ratchet effect

I have mentioned this in my previous posts, but it deserves reiteration. When the people of California pass a law at the ballot box, it is usually specified that the Legislature cannot change that law except in limited ways, such as to improve it working toward its stated goals. That means that when an initiative passes, its basic principles are there to stay, unless another initiative changes it later.

This is the case for Prop 64, which mostly allows revisions only by a two-thirds majority of the Legislature “to further the purposes and intent of the Act”. It does allow revision by a simple majority – less of a hurdle – for some of its more operational portions, such as how marijuana business is regulated. It also has this critical text on penalties:

The Legislature may by majority vote amend, add, or repeal any provisions to further reduce the penalties for any of the offenses addressed by this Act. (Section 10, emph. added)

That means that if the Legislature wants to move to, say, legalize 100-plant personal gardens, or increase the possession limit to two pounds, it is completely free to do so. It is not free, by contrast, to recriminalize or increase penalties. For example, if it wanted to increase penalties on possession by minors, it would have to amass a two-thirds majority in both houses, and could perhaps still be sued over whether such increased penalties were consistent with purposes and intent.

So as the politics ebb and flow, at times when advocates swing the Legislature toward the side of further legalization, they can change the law in that direction; but if the Legislature later swings back toward drug-war sentiment, it will not be able to change back, unless the swing is strong enough to command a supermajority and survive judicial scrutiny. This acts like a ratchet, making it more likely penalties will decrease over time, perhaps to a level closer to what now applies to illicit alcohol activity. As a matter of principle, I normally dislike tying the Legislature’s hands so much (Prop 13 ratchets taxes down in the same way), but in this particular case, it seems likely it will lead to better outcomes, limiting the fallout from the crime panics legislators sometimes fall into.

(As an interesting technical side note, I suspect that this provision may end up forcing the Legislature to resolve the concentrated-cannabis drafting error in Prop 64 in the more lenient direction, choosing 8 grams, not 4, as the dividing line. After all, if they changed text from 8 grams to 4 grams anywhere, that might county as increasing the penalty.)

8. Summary

If you only take away a few things from this post, let it be these:

  • With one exception, Prop 64 does not increase penalties for any marijuana conduct: some is fully legalized, some has penalties significantly reduced, some stays where it is. The exception is smoking in prohibited places, where the applicable fine increases. The Legislature will have a free hand to further reduce penalties as it sees fit in the future.
  • Prop 64 does not restrict or hamper medical users in what they may cultivate or possess, or increase the potential scope of local bans; it carves out an unbannable cultivation level for all adults in the state.
  • There will still be racial disparity in enforcement of the offenses that remain, which has to be the subject of further activism, but Prop 64 is still a positive step for racial equity: fewer arrests, fines, incarceration, plus retroactive amnesty. Waiting for better means at least two and more likely four to eight years of zero progress.
I hope this is useful to those looking more closely at Prop 64. Please comment or email me if you have questions or corrections.

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