BACKGROUND TO THE PROPOSITION

California passed the first state marijuana prohibition law in 1913. From the time that it was first banned in 1913 to date, the number of marijuana users in California has increased from a handful to several million, while the number of persons arrested for cannabis offenses has been steadily increasing. After the 1960s, a time characterized by widespread use of marijuana by young adults as a recreational drug, a wave of legislation in America sought to reduce the penalties for the simple possession of marijuana, making it punishable by confiscation and/or a fine rather than imprisonment. California decriminalized possession of marijuana in 1975 (Senate Bill 95, effective January 1, 1975).

What does it mean to decriminalize possession? Decriminalization treats the possession of small amounts of marijuana (such as one ounce) as a civil, rather than a criminal, offense. Offenders are given a citation and fined, and their marijuana is confiscated. Possession of larger amounts is still a criminal offense because it implies intent to sell.

Details on Current Law in California regarding marijuana

• Possession of one ounce or less of marijuana, a misdemeanor, is not an arrestable offense. Upon conviction of the misdemeanor charge the offender is subject to a fine of $100. Possession of greater than one ounce is punishable by up to six months in jail and a fine of up to $500.      
• Possession of one ounce or less of marijuana on school grounds when the school is open is punishable by up to 10 days in jail and a $500 fine. Possession of greater than one ounce or more of marijuana in a school zone is punishable by up to six months in jail and a fine of up to $500.
• The cultivation or processing of any amount of marijuana is punishable by up to sixteen months in state prison.
• Selling marijuana in any amount is punishable by two to four years in state prison. Giving away less than one ounce is a misdemeanor and is punishable by a fine of up to $100.
• Sale of marijuana to a minor is punishable by three to five years in prison.

For anyone under the age of 21 convicted of any of the above offenses, the state may suspend the offender’s driver’s license for up to one year.

Under Proposition 215, passed by the voters in November 1996, the laws regarding possession and cultivation of marijuana do not apply to patients or patients’ primary caregivers who possess or cultivate marijuana for the personal medical use of the patient, upon the recommendation or approval of a physician.

In November 2000, Proposition 36, The Substance Abuse and Crime Prevention Act of 2000, was passed by a substantial majority (61%) of California voters. The proposition allowed first and second time non-violent simple drug possession offenders the option to receive drug treatment and legal probation instead of incarceration.

Federal law regarding marijuana

Marijuana is illegal under federal laws. If marijuana becomes legal in California under state law, it will still be federally illegal. This conflict has already been tested by California’s passage of Proposition 215 allowing distribution, sale and possession of marijuana for medical purposes. The U.S. Supreme ruled that federal agents can arrest medical marijuana users and growers even though Proposition 215 makes that behavior legal in California.

Legal scholars, considering what might happen if marijuana is fully legalized in California, have said:

• The federal government would not be able to require California law enforcement agencies to help them enforce the federal law.                                       
• Federal law enforcement officers can continue to arrest and prosecute the use, sale or possession of marijuana in California.                                     

The federal government under President George W. Bush occasionally raided medical marijuana dispensaries or growers supplying the dispensaries. In March 2009, the Obama administration announced that it would stop raids on dispensaries that followed state law, although it continues to enforce laws against marijuana production generally.

As a matter of practice, most marijuana arrests are made by state law enforcement officers. In 2008, less than one percent of all marijuana arrests nationwide were made by federal agents.

Recent Proposed changes to marijuana law

As of July 2010, there are two marijuana-related bills before the California legislature SB 1449 and AB 2254.

SB 1449 would not legalize marijuana. Rather, it would reduce the penalty for possessing less than one ounce to an infraction—the equivalent of a parking violation—instead of a misdemeanor offense. The bill passed the Senate on June 3, 2010, and it was voted out of the Assembly’s Committee on Public Safety on June 22, 2010. It is now being considered by the full Assembly.

In contrast to SB 1449, AB 2254 (like Proposition 19) would legalize marijuana with respect to California, albeit not federal, law, including production and wholesale distribution.

THE PROPOSITION

Proposition 19 would amend California law in three important ways:

• Legalizes Possession of Marijuana. California law would be amended to provide that it is “lawful” for any person 21 years of age or older to “possess, process, share, or transport not more than one ounce of cannabis, solely for that individual’s personal consumption, and not for sale.” Personal consumption includes possession in a residence or other non-public place and licensed premises open to the public authorized by a local government (below).
• Permits Adults to Grow Marijuana. California law would be amended to provide that it is “lawful” for any person 21 years of age or older to “cultivate, on private property by the owner, lawful occupant, or other lawful resident or guest of the private property owner or lawful occupant, cannabis plants for personal consumption only, in an area of not more than twenty-five square feet” except that tenants may be required to obtain the owner’s consent.
• Authorizes Local Governments to Permit, Regulate and Tax Commercial Operations. A city, county or city and county may (a) permit “retail sale” of not more than one ounce per transaction, in a “licensed premises,” and (b) place controls on licensed premises for sale, cultivation, processing, or sale and on-premises consumption, of cannabis (such controls to include zoning, land use, hours of operation, advertising and protection of nearby properties). Local governments may also establish “appropriate” general, special or excise, transfer or transaction taxes, benefit assessments, or fees, on any activity authorized by the new law.