California's Marijuana Initiative Is Needlessly Punitive and Restrictive

It is still better than prohibition.


Jacob Sullum

In recent polls, support for Proposition 64, California's marijuana legalization initiative, ranges from 51 percent to 58 percent, while opposition ranges from 30 percent to 40 percent. The latter group includes not only diehard prohibitionists but also at least some voters who oppose the war on weed yet think Proposition 64 is the wrong way to legalize. These critics make some valid points, but they do not make a persuasive case that the status quo is preferable.

A lot of people who currently make money by growing or selling medical marijuana in California are understandably concerned about the competition that a newly legal recreational market would invite. Proposition 64 tries to placate pot farmers by imposing a five-year ban on growers cultivating more than 22,000 square feet indoors or more than an acre outdoors. That ceiling is aimed at "allowing smaller growers to establish themselves in the market."

Dragonfly De La Luz, a longtime cannabis activist, sees this provision as woefully inadequate. "While Prop. 64 claims that it 'protects small farmers' by including 'anti-monopoly provisions,' this only applies to the first 5 years of legalization," she writes. "After that time, millionaire Weedmaps founder Justin Hartfield—the second largest investor in Prop. 64 after Sean Parker—intends to turn the current farm-to-table cannabis model into Big Tobacco. The mom-and-pop cultivators that have been the backbone of the industry for generations would be priced out of competition in short order."

Whether you are disturbed by De La Luz's vision of a "corporate cannabis coup," which bears more than a passing resemblance to prohibitionists' warnings about the dangers posed by Big Marijuana, will depend on whether you think small businesses are inherently better than big ones. It seems likely that at least some small operations will survive in this new environment by offering boutique strains of cannabis, just as small wineries, breweries, and distilleries thrive by catering to minority tastes. But for anyone who appreciates the power of free markets, the likelihood that big businesses will eventually dominate the new market by giving consumers what they want for less is hardly something to be feared.

De La Cruz is on firmer ground in arguing that Proposition 64 prescribes unreasonably severe criminal penalties for trivial marijuana offenses. For adults 21 or older, possessing more than an ounce in public or growing more than six plants at home is punishable by a $500 fine and up to six months in jail—the same as the current possession penalties and remarkably harsh for a measure that purports to legalize marijuana. It should not be even theoretically possible to jail someone for carrying an ounce and a half of marijuana or growing seven plants.

The legal situation would be worse for 18-to-20-year-olds, who would not be allowed to buy, possess, or grow marijuana at all. Possessing up to an ounce would remain an infraction punishable by a $100 fine, as it currently is for all adults. More than an ounce could get adults younger than 21 up to six months in jail, and so could sharing any amount with their peers. De La Cruz notes that "young people in this age group—which includes most college students—will face up to 6 months in jail and a $500 fine for simply sharing a joint together," while "adults 21 and over who pass a joint to another college-age adult under 21 face the same steep penalty."

The continued criminalization of such common and innocuous behavior for adults younger than 21 is a problem that Proposition 64 shares with every legalization initiative that has passed so far and every one that is on the ballot next week [see addendum]. It is similar to the problem created by setting the drinking age at 21, except that under Proposition 64 giving marijuana to 18-to-20-year-olds would be punished more severely than giving them alcohol.

Meanwhile, however, recreational consumers 21 or older would no longer face fines for possessing up to an ounce, and they would be allowed to grow marijuana at home (up to six plants per household), which is currently a felony. They also would be free to share up to an ounce with other adults 21 or older, currently a misdemeanor. If they did not want to grow their own, they could buy cannabis from state-licensed retailers without having to feign an illness. They could even get it delivered or enjoy it in social settings outside their homes—options that are either banned or legally problematic in other states with legal pot. Growers and sellers likewise could unabashedly serve the recreational market without going to prison.

Although it would be nice to get those benefits without throwing 18-to-20-year-olds under the bus, that tradeoff has been accepted by every state that has legalized marijuana so far, and it is better than leaving cannabis-related activity uniformly illegal. There are other problems with Proposition 64, including the protectionist provisions that De La Cruz deems inadequate but that I would rather see eliminated entirely and restrictions on advertising that are anti-competitive and probably unconstitutional. But none of these issues is serious enough to make continued prohibition a better option.

Addendum: René Ruiz, a member of the Marijuana Policy Project's board of directors, points out that in Massachusetts, where possessing up to an ounce of marijuana is currently a civil offense punishable by a $100 fine, the state's Supreme Judicial Court has held that socially sharing small amounts of marijuana does not qualify as distribution and therefore does not justify a criminal charge. Hence 18-to-20-year-olds who pass a joint or a bowl are not currently guilty of a crime under state law, and Question 4, the Massachusetts legalization initiative, would not change that. By contrast, growing even small amounts of marijuana in Massachusetts is currently a crime punishable by a maximum fine of $5,000 and up to two years in prison. Question 4 would make home cultivation of up to six plants legal for adults 21 or older but not for 18-to-20-year-olds.