Will California Go All in on Legalizing Recreational Weed?
Twenty years ago, California led the way on weed, becoming the first state in the nation to approve medical marijuana. Now, while it's already lost the chance to be the first to legalize recreational use, the Golden State is poised to push legal pot past the tipping point this November.
Although voters in Colorado and Washington first broke through the grass ceiling in 2012, with Alaska, Oregon and Washington DC following suit in 2014, if Californians vote to legalize, they will more than triple the size of the country's legal marijuana market in one fell swoop.
It's not a done deal until election day, of course, but the prospects are very good. The Adult Use of Marijuana Act (AUMA) legalization initiative is officially on the ballot as Proposition 64, it has cash in the bank for the campaign (more than $8 million collected so far), it has broad political support, including Lt. Gov. Gavin Newsom (D) and at least four California U.S. representatives, and it has popular support, with the latest poll showing a healthy 60 percent of likely voters favor freeing the weed.
It's also that the surfer's paradise is riding a weed wave of its own creation. Thanks in large part to the "normalization" of the pot business that emerged out of California's wild and woolly medical marijuana scene, the national mood on pot has shifted in recent years. Because of California, people could actually see marijuana come out of the shadows, with pot shops (dispensaries) selling it openly to anyone with an easily obtained doctor's recommendation and growers turning parts of the state in pot cultivation hotbeds. And the sky didn't fall.
At the same time, the shift in public opinion has been dramatic. According to annual Gallup polls, only a quarter of Americans supported marijuana legalization when California voted for medical marijuana in 1996, with that number gradually, but steadily, increasing to 44 percent in 2009, before spiking upward ever since then to sit at 58 percent now.
California isn't the only state riding the wave this year; legalization will also be on the ballot in Maine and Nevada and almost certainly in Arizona and Massachusetts. But California is by far the biggest, and it will help the state regain its reputation as cutting edge on social trends, while also sending a strong signal to the rest of the country, including the federal government in Washington.
But what kind of signal will it send? What will legalization look like in the Golden State? To begin, let's look at what Prop 64 does:
- Legalizes the possession of up to an ounce of marijuana and the cultivation of up to six plants (per household) by adults 21 and over.
- Reduces most criminal penalties for remaining marijuana offenses, such as possession or cultivation over legal limits or unlicensed distribution, from felonies to misdemeanors.
- Regulates the commercial cultivation, processing, distribution, and sale of marijuana through a state-regulated licensing system.
- Bars commercial "mega-grows" (more than ½ acre indoors or 1 acre outdoors) until at least 2023, but makes provisions for licensed "microbusinesses" (grows smaller than 10,000 square feet).
- Allows for the licensing of on-site consumption premises, or "cannabis cafes."
- Allows cities and counties to regulate or even prohibit commercial marijuana activities, but not prohibit personal possession and cultivation.
- Taxes marijuana at 15 percent at the retail level, with an additional $9.25 per ounce cultivation tax imposed at the wholesale level.
In other words, pot is largely legalized and a taxed and regulated market is established.
Some changes would occur right away, advocates said.
"The criminal justice impact will be huge and immediate, and it will start on November 9," said Lynne Lyman, California state director for the Drug Policy Alliance, which is backing Prop 64 not only rhetorically, but also with its checkbook through its lobbying and campaign arm, Drug Policy Action.
California arrests about 20,000 people a year for marijuana felonies and misdemeanors, currently has about 10,000 people incarcerated for pot offenses, and has as many as half a million with pot convictions on their records. Things are going to change in a big way for all these people.
"Those marijuana arrests will stop," said Lyman. "And everyone currently sitting in jail or prison will be eligible to apply for release. They will have to file a petition, but like Prop 47 [the sentencing reform initiative passed in 2014], unless there is a compelling reason to deny it, the court must grant it. Similarly, all those people who have had marijuana offenses will be eligible to have their record reclassified."
To be clear, it will still be possible to be arrested for a marijuana offense in California after Prop 64. Possession of more than an ounce (or more than four grams of concentrate) will be a crime punishable by up to six months in jail and possession of less than an ounce can be a misdemeanor offense if it is on school grounds during school hours.
Similarly, cultivation of more than six plants without being a permitted medical marijuana patient or without a license is still a crime, but typically only a misdemeanor punishable by a maximum of six months in jail. There are some exceptions: Illegal growers could be charged with a felony if the person has prior violent offenses or violates state water or environmental laws.
Minors get special treatment. Kids under 18 who get caught with pot are hit with an infraction punishable by drug education, counseling, or community service, but no fines. People between 18 and 21 get an infraction with a maximum $100 fine. And while adults who possess pot on a school grounds during school hours get a misdemeanor, kids under 18 will only be hit with an infraction.
"We want to reduce the number of young people getting into the system, and this will really dial down the firehose into mass incarceration," said Lyman.
The state's largest marijuana consumer group, Cal NORML, certainly likes those provisions, but it only gives Prop 64 one thumb up and foresees some issues down the road.
"We're supporting the AUMA with reservations," said the group's long-time head Dale Gieringer. "It's not the best initiative ever written—it has some problems that will have to be addressed—but it is an important step. The huge thing it does is legalize adult possession of an ounce and adult cultivation of up to six plants. That's big. And it turns cultivation and possession with intent felonies into misdemeanors, or at worst, wobblers," meaning prosecutors could only in limited cases charge them as felonies.
"The AUMA is very long and complicated, with unnecessary hang-ups and restrictions," Gieringer complained, citing bans on public smoking and vaping as examples.
"In places where there are bans on smoking in apartments or residences, in public is about the only place you can smoke. If it's illegal to smoke pot in a public place, people will be hard-pressed to find any place," he said. "You can't even vaporize in a public place, and that's totally out of line with the existing science. They just caved in to the powerful anti-smoking lobby on that, and we can't endorse that."
The Cal NORML membership also includes pot farmers, of which the group estimates there are some 30,000 in the state. They are nervous, Gieringer said.
"We have a lot of small growers and they have a lot of issues," he explained. "They are concerned about regulatory provisions they fear could quickly push small growers out of the business. AUMA requires you to be an in-state resident, and we're already growing more than we need, yet we have out-of-state sponsors lining up behind in-state sponsors."
Earlier this month, the state industry's largest membership group, the California Growers Association, voted to remain neutral on Prop 64—at least for now—after its membership split almost down the middle on whether to support it. Growers, including association head Hezekiah Allen, worried that big-money investment and consolidation of the industry impelled by huge "mega-grows" could wipe out the now generations-old traditional pot farming scene in the state's North Coast.
Allen warned in a report to the group's board that such consolidation could "result in a catastrophic economic collapse for huge swathes of California," including the North Coast's Emerald Triangle.
Stoners may have to fight for the right to toke and pot farmers for their place in the market, but some of the communities most buffeted by drug prohibition should see benefits. Prop 64 contains language that will direct revenues to minority communities, and also opens the door for localities themselves to take proactive steps toward racial justice.
"The AUMA has a community reinvestment fund with the first revenues available in 2019," said DPA's Lyman, adding that it will be $10 million the first year and up to $50 million a year in the future. "This is going to communities most impacted by the drug war, black and brown communities, and will include everything from legal services, to public health and economic development. The communities will be able to decide."
Localities will also be deciding on how to implement regulation of the legal market, and that is another opportunity, Lyman said.
"Hopefully, we will see things like what happened in Oakland, where under the new regulations, 50 percent of the new licenses have to be from the community," she said. "We hope other cities will do that to mitigate racial discrimination and the injustice of the past by prioritizing people of color and women, so we don't end up with a bunch of white men getting rich off what black and brown people have endured. DPA will be very involved in this."
Somebody is going to be making money, though. The state's marijuana market, estimated at $2.7 billion for medical last year, could quickly hit $7 billion under legalization.
"I see tremendous potential for a blossoming of cannabis opportunities," said veteran California marijuana activist, author, and historian Chris Conrad, who has become a pro-Prop 64 spokesman under the rubric of Friends of Prop 64. "Of course, the size of the industry will be impacted by the need to limit the market to intra-state rather than national or international. Given that California is the world's sixth largest economy and has the largest appetite for cannabis in the world, the state's nonmedical market is going to be sizeable."
Legalization will bring changes from price reductions to changing product lines, he said.
"Overall marijuana production is expected to soar, prices to come down and probably a lot more cannabis will be converted into extracts and expand or open new markets for personal hygiene products, topical remedies and essential oils," Conrad predicted. "There will be large-scale cannabis production that is homogenized with relatively low to medium potency, but still of better quality than Mexican brick weed. But we will never replace the boutique markets any more than Budweiser has eliminated microbreweries or 'Big Wine' has wiped out California's family vintners."
And it's not just marijuana, but pot-related businesses that will boom, said DPA's Lyman.
"Formalizing regulations for the first time will expand the industry, and there will be lots of ancillary industries, such as marketing, packaging, and tracking, that should all thrive in post-legalization California," she said.
"There will be new ancillary markets for products such as locking stash boxes for people to carry their cannabis while driving, toking stations near entertainment venues and discrete, low-wattage, six-plant cultivation tents specialized for use in condos and apartments," added Conrad.
Conrad said he expected counties and cities will opt in to the revenues from allowing pot commerce instead of locking themselves out with bans.
"The distribution around the state will likely be porous, some areas more saturated and others with less access," he said. "Since towns will be licensing lawful businesses and no longer will be at the mercy of the county prosecutors' discretion, I expect to see a general spread of retail sites and onsite consumption shops around the state. Not in every town, not as obnoxious and omnipresent as liquor stores, but not too far away, either."
We shall see.
"You can't predict the future," said Gieringer. "It will be a new situation. Medical marijuana here evolved through several different stages, and I expect the same process to unfold here with the Adult Use of Marijuana Act. On balance, the AUMA is an important step, but it's not the end game, and it leaves us with unresolved problems."
You may not be able to predict the future, said Lyman, but you can influence it.
"This will be a work in progress," she said. "The long-term work of implementation starts on November 8. We have to be there. To continue to be engaged will be critical."
But even under state level legalization in California, as long as there is pot prohibition somewhere in America, there will be Golden State growers ready to supply the market.
"The one thing everyone needs to recognize is that this does not end the problem of illegal marijuana growing in California," said Gieringer. "The industry has been well-entrenched for generations and is currently supplying the rest of the country, too. That market isn't going to disappear. The more expensive and difficult it is to become legal, the more people will likely participate in that black market."