Polls suggest California voters will legalize recreational use of marijuana this November. I am a supporter of legalization, but only tepidly, and only because of certain unpleasant realities.
California made 465,873 marijuana-related arrests between 2006 and 2015. Nationwide, despite spending billions on the war on drugs, drug abuse remains at unacceptable levels. Illegal production has degraded the environment, often in pristine wilderness areas, and black market producers do not pay taxes.
As a law professor, I also am troubled that respect for the law diminishes when we criminalize conduct that so many people engage in, especially when people of color are arrested on marijuana charges far more frequently than white offenders, despite similar use across racial groups.
Still, the more extravagant claims that some proponents of legalization make leave me skeptical. Some proponents project $1 billion or more in tax revenue; much lower prison, jail and law enforcement costs; an end to environmental degradation; and victories over drug cartels and gangs. The National Organization for the Reform of Marijuana Laws, which supports legalization, projects 50,000 new jobs paying $1.4 billion in new wages.
Such claims are highly speculative, and often at odds with one another. For example, studies show tax revenue depends on many variables, including rates low enough to ensure illegal producers cannot undersell legal ones. We would still need a strong law enforcement presence, and we would have to send some tax cheats and illegal producers to jail.
California made 465,873 marijuana-related arrests between 2006 and 2015.
But not all arguments for Proposition 64 are dubious. This year’s measure benefits from new federal guidelines created for Washington state and Colorado, where marijuana is legal, and thoughtful policy work by Lt. Gov. Gavin Newsom’s blue ribbon commission report on regulating marijuana in California.
Indeed, Proposition 64 includes sensible provisions. One would set tax rates at levels designed to give producers incentive to participate in the legal trade rather than the marijuana black market.
Another would earmark tax revenue toward specific uses, including an annual $3 million grant to the Highway Patrol to develop standards to determine if drivers are under the influence of marijuana. Remaining tax revenue would support environmental cleanup and go to youth education, prevention and treatment.
Another provision would leave the door open for individuals with prior marijuana arrests and convictions to participate in the legal marijuana trade. Without that, producers and sellers would remain in the black market. To prevent large corporations from entering the trade, the proposition would license marijuana growing only on small plots of land for five years.
Given these forward-looking provisions, what is not to like?
Start with a recent study that found marijuana use is up among high school dropouts, that this group consumes almost 20 percent of all marijuana in the U.S., and that almost one in three users earns under $20,000 a year. Making it easier to add marijuana to this mix will not help low-income children climb out of poverty.
What’s more, given the demographics of marijuana use, Proposition 64’s tax will be regressive; people with the least money would shoulder a disproportionate share of the burden. Lower-income families are unlikely to have equal access to the treatment that would be funded by the tax, given historical patterns in access to health care.
A third concern centers on future regulation. No one can predict what will happen when Proposition 64’s five-year cultivation limit and 10-year tax lifespan run out. Will Big Tobacco or Big Marijuana induce legislators to open the market further, allowing large producers to ramp up advertising and sales? Will the Legislature change the law, letting revenue flow to the general fund?
On balance, Proposition 64 would be a marked improvement upon the current system. I probably will vote yes. But I won’t inhale.
Michael Vitiello is a professor at University of the Pacific’s McGeorge School of Law in Sacramento. email@example.com