Saturday, August 27, 2016


I thought for decades that legalization meant that we would all keep doing what we were doing without fear of arrest or prosecution. I failed to grasp that the powers that be would see it as just another angle [from] which to gain control and hand opportunity to the wealthiest, most ruthless, [and] most connected...
- Vivian McPeak, Executive Director, Seattle Hempfest, on the aftermath of Washington's recreational initiative
Proponents of Prop. 64 have been fueling their campaign with buzz words every progressive voter wants to hear, saying the initiative would end the drug war, free up cops and courts to focus on true crime, and even let imprisoned pot POWs go free. But a deeper look beyond the headlines, beyond the rhetoric; a deeper look at the text of the initiative itself reveals that Prop. 64 will not do what it claims. In fact, in many cases, it will do the opposite. It's almost as if, in this age of sound-bytes and skimming headlines, Prop. 64's proponents are operating under the assumption that Californians will simply not take the time to actually read the initiative. And clocking in at a mammoth 62 pages of dense legalese, they're probably right.

But no one signs a 62-page contract without reading it first. If there is any cue we can take from Bernie Sanders on this issue, it is that we must not support an initiative simply because it's on the ballot. We must devote time to reading and understanding it, to know what we're voting for, and we must only support it “if the wording is reasonable,” to use his words. Otherwise, we, like so many in Washington State, may come to regret it.

If Prop. 64 were only about allowing adults to indulge in cannabis recreationally, this article wouldn't even be necessary. But Prop. 64 sets up an unwieldy regulatory framework that favors corporations over people, rips decades of hard-won rights from patients, throws urban poor communities under the bus and could create unimaginable environmental disaster “just for fun” – without giving citizens much in return: no tax revenue for schools or health care, and not even much in the way of rights since a) we can already possess the one ounce it would legalize and b) it doesn't guarantee the right to grow, and in fact makes it almost impossible by giving final say to local jurisdictions that are traditionally overwhelmingly hostile toward cannabis. And since the legislature could change it without voter approval, Prop. 64 offers nothing that can't be easily revoked.

Using the text of the initiative itself -- not just supporters' claims about the initiative -- this article looks at some of the more salient myths and misconceptions about Prop. 64, for the purpose of engaging in dialogue about what we're told AUMA would do, versus what it actually would do. 


Prop. 64 has always been touted as a way to generate income for the state's coffers, and most people have assumed that would translate to much-needed funding for public schools, health care, infrastructure and cash-strapped local governments. Even the state's own Blue Ribbon Commission on Marijuana Policy, formed by Lt. Gov. Gavin Newsom, concluded that “taxes on legal marijuana should be used for education, public health programs and public safety.” Unfortunately, under Prop. 64, that would not quite come to fruition. Contrary to popular assumption, Prop. 64 states that NONE of the tax revenue from recreational cannabis will go to the General Fund. Instead, all tax revenue would go into the California Marijuana Tax Fund – an enormous slush fund designated solely to financing the massive bureaucracy that Prop. 64 would create:
Section 34018
(a) The California Marijuana Tax Fund is hereby created in the State Treasury. The Tax Fund shall consist of all taxes, interest, penalties, and other amounts collected and paid to the board pursuant to this part, less payment of refunds.
(b) Notwithstanding any other law, the California Marijuana Tax Fund is a special trust fund established solely to carry out the purposes of the Control, Regulate and Tax Adult Use of Marijuana Act...
(c) Notwithstanding any other law, the taxes imposed by this part and the revenue derived therefrom, including investment interest, shall not be considered to be part of the General Fund...

Not only does this create a system ripe for corruption and cronyism, since only Gavin Newsomwho is expected to head up this recreational weed bureau and oversee its massive treasury – and his appointees would have the power to decide who receives those millions, but it is in stark contrast to what's happening in other states that have recreational cannabis.

In Colorado, $40 million a year is ear-marked for building schools, while 15 percent of excise tax revenue goes to local governments. In Washington, the $67.5 million in pot taxes the state collected last year are being “directed toward its general fund and health-related services,” according to an article in Bloomberg. But even in those states, only localities that opt to participate in recreational commercialization may receive a share of the revenue. And in California's case, almost no city or county would see any benefit at all, because, according to NORML, more than 75 percent of the state either already has bans or is considering enacting bans on commercial cannabis activity. But that's a moot point, since Prop. 64 would give absolutely none of the tax revenue to the General Fund in the first place. So, despite the rhetoric from proponents, no city or county would stand to gain any tax revenue at all from Prop. 64.

And it's worth pointing out that in Washington, where recreational tax revenue is shared with its general fund and health care, it wasn't initially this way. Like Prop. 64, Washington's I-502 originally “'didn’t provide for any revenue going to cities or counties,' said Candice Bock, a government relations advocate with the Association of Washington Cities.... That frustrated many county and local municipalities and lead [sic] to the passing of House Bill 2136, which set in place a program of tax fund sharing between the state, counties and cities.” 

Surely, the proponents of Prop. 64 are aware that local governments will not be getting a piece of the pot pie. Yet they promote the idea of a tax windfall as if the people of California will actually see some benefit from it, when in reality, they will not. The only thing they will see is the wool over their eyes. This is yet another one of Prop. 64's deceptions.

Prop. 64 would tax all cannabis for sale at a rate of  $9.75 per ounce, which translates to almost 10 percent on a $400 ounce, not including the 15 percent excise tax, plus sales and use tax which can be as high as 10 percent in some areas. And cities and counties can add separate, additional taxes. While these fees wouldn't apply to a patient's home-grow (provided it doesn't exceed the limit of 6 plants), the majority of California has banned most cultivation in anticipation of possible legalization, which would force most patients into the corporate commercial market where not only will they be subjected to exorbitant taxes, but where the price of cannabis is likely to rise: Shortly after Colorado's recreational stores opened, cannabis was selling for almost $500 an ounce – “far more expensive than black-market prices,” and not including “taxes that can exceed 30 percent in some jurisdictions.”

Although Prop. 64 does appear to give patients a bit of a tax break, in practice, this would likely not be the case. Prop. 64 would exempt patients with state-issued ID cards from the sales and use tax (7.5-10 percent) if and only if they register their name, address, social security number, medical condition, and the name of the person who grows on their behalf in a state database identifying them, quite frankly, as bona-fide federal law-breakers (Sec. 11362.713). Many see this as a violation of privacy.

Northern California's Mendocino County famously enacted a similar registration database in 2010, and nearly 100 people eager to comply with the new regulations signed up under the same promise that Prop. 64 makes now: that all information would remain “private.” Eighteen months later, the DEA conducted raids on the very people responsible enough to comply.

Despite proponents' promises that this information would be kept confidential, the text of the initiative makes no such promise.

Sec. 11362.713
(a) Information identifying the names, addresses, or social security numbers of patients, their medical conditions, or the names of their primary caregivers, received and contained in the records of the Department of Public Health and by any county public health department... shall not be disclosed by the Department or by any county public health department except in accordance with the restrictions on disclosure of individually identifiable information under the Confidentiality of Medical Information Act [Sec. 56.10 of the Civil Code].

In other words, this personal information would remain private unless a law enforcement agency, search warrant, court or a regulatory agency requests it:

Sec. 56.10 of the Civil Code
(b)A provider of health care, a health care service plan, or a contractor shall disclose medical information if the disclosure is compelled by any of the following:
(1) By a court pursuant to an order of that court.
(6) By a search warrant lawfully issued to a governmental law enforcement agency.
(9) When otherwise specifically required by law.

Considering that law enforcement and judicial agencies are the primary ones anyone is concerned about with regard to the confidentiality of their medical marijuana use, Prop. 64 would not protect the privacy of registrants in any meaningful way. Patients will be stuck paying an increase of more than 30 percent to cover extreme taxes levied on the plant, because most people are unlikely to risk having their pot proclivities and personal information leaked or otherwise handed over to the authorities, especially in such an uncertain political climate.

Look,” Kleiman was quoted in The Sacramento Bee, “All you have to do is take a list of the state-licensed cannabis growers and sellers into federal district court and say, 'Your Honor, here are the people who have applied for and been given licenses to commit federal felonies.'’’  

Allen St. Pierre of NORML added that Chris Christie, the former vehemently anti-cannabis federal prosecutor who is regarded as one of Trump’s top candidates for attorney general, may be an even greater threat than Trump to cannabis consumers. When Christie ran for the Republican nomination, “[h]e was the most virulently anti-marijuana candidate,” St. Pierre said in the Sacramento Bee, even vowing to enforce all federal cannabis laws should he be elected. If Trump actually wins in November, anyone who puts their personal information in a state database could be at grave risk of federal prosecution.


Since its inception, Prop. 64 proponents have claimed that the initiative will have no impact on patients who rely on Prop. 215 to cultivate cannabis to serve their medical needs. But when pressed for proof that this is the case, supporters respond either with false and misleading information, or offer only their opinions and Prop. 64's “intentions.” However, an initiative's “intentions” are not what will be codified into law; only the text is. And according to the text itself, Prop. 64 will absolutely – and irreversibly – destroy patients' most hard-won right: the right to cultivate as much cannabis as they need. Letting the text speak for itself, this section presents what patients and other cannabis supporters have long been waiting for: definitive proof of exactly where and how Prop. 64 will affect patients' rights.

For 20 years, seriously ill patients have been allowed to avoid costly prescription medications – and the debilitating and often fatal side effects that accompany them – by treating themselves with cannabis. Today, some 2 million patients enjoy the right to grow as much cannabis as they require – literally an unlimited amount, as upheld by the Supreme Court in the People v. Kelly ruling – for any condition “for which marijuana provides relief.” And under California law as it is written today, anyone can become a patient, and no one has to lie to do it, thanks to the deliberately liberal wording of Prop. 215.

The key phrase is, 'or any other illness for which cannabis provides relief,'” says Dennis Peron, co-author of Prop. 215 and widely considered the father of the legalization movement. “We specifically wrote it that way to give literally everyone in the state the opportunity to legally access and cultivate as much cannabis as they need to feel good.” Under Prop. 64, however,unlimited” would drop to six (6) plants (individual jurisdictions could allow more) which is nowhere near enough to treat many of the most serious ailments like the epileptic seizures in children that caused CNN medical correspondent Sanjay Gupta to do an about-face in support of medical marijuana in 2013.
Not only does Prop. 64 fail to protect patients' right to cultivate according to their particular ailments, it outright repeals it. And it does so using language so deceptive, even those who actually manage to read through the obtusely worded, 62-page initiative are not likely to notice. (Even I thought it protected patients' cultivation rights the first few times I read it, and I had read it looking for proof that it didn't.) Keep in mind, if Prop. 64 pertained only to recreational cannabis, then page one of the initiative would not say this: "The Control, Regulate and Tax Adult Use of Marijuana Act (hereafter called the Adult Use of Marijuana Act) will consolidate and streamline regulation and taxation for both nonmedical and medical marijuana."

In a nutshell, Prop. 64 is extremely – and deliberately – convoluted, written to create the appearance of protection for patients while, in actuality, destroying them. For example – and this language is often quoted by Prop. 64 supporters out of context – one section says: “Nothing in this section shall be construed or interpreted to amend, repeal, affect, restrict, or preempt laws pertaining to the Compassionate Use Act of 1996 [Prop. 215].” Based on that sentence, it almost sounds like Prop. 64 leaves Prop. 215 intact. But context is everything. Look closely. That sentence does not say, “Nothing in this initiative shall be construed or interpreted to amend, repeal, affect, restrict, or preempt laws pertaining to the Compassionate Use Act of 1996” -- if it did, patients and advocates would have no argument. Instead, it says, “Nothing in this section...” And the section where this disclaimer appears is 11362.3 – a section that refers only to where persons may use and possess – not cultivate:

(a) Nothing in Section 11362.1 shall be construed to permit any person to:
(1) Smoke or ingest marijuana or marijuana products in any public place, except in accordance with Section 26200 of the Business and Professions Code.
(2) Smoke marijuana or marijuana products in a location where smoking tobacco is prohibited.
This section goes on to list a total of eight items, all related to consumption – in public, in cars, on boats, etc. At the end of that section, the disclaimer is found:
(f) Nothing in this section shall be construed or interpreted to amend, repeal, affect, restrict, or preempt laws pertaining to the Compassionate Use Act of 1996.

To reiterate, this protected section, 11362.3, only covers the rights to consume and possess. So the restrictions on smoking in public, for example, would not apply to patients, who currently may legally consume anywhere tobacco smoking is allowed. Duly noted. But it is 11362.1 and 11362.2 that refer to cultivation rights, and these sections clearly state that lawful cultivation will be limited to only six (6) plants:

(a) Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:
(3) Possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants...
What follows is where proponents of Prop. 64 make the misguided claim that patients would be exempt from this six-plant cultivation limit:

Nothing in section 11362.1 shall be construed or interpreted to amend, repeal, affect, restrict, or preempt: ...(i) Laws pertaining to the Compassionate Use Act of 1996.

This part is crucial: Despite what appears to be a blanket exemption for patients, remember that Section 11362.1 is itself governed by, or “subject to,” another section11362.2 – “notwithstanding [regardless of] any other provision of law. This is the deception. This is the section that can easily be interpreted to override and ultimately govern 11362.1 (and by extension, Prop. 215). It can be read as: “Regardless of any other provision of law” – and that includes Prop. 215 – :

(a) Personal cultivation of marijuana under paragraph (3) of subdivision (a) of Section 11362.1 is subject to the following restrictions:
(1) A person shall plant, cultivate, harvest, dry, or process plants in accordance with local ordinances, if any, adopted in accordance with subdivision (b) of this section.
(3) Not more than six living plants may be planted, cultivated, harvested, dried, or processed within a single private residence, or upon the grounds of that private residence, at one time. 
This means that, in order to legally cultivate, a patient must adhere to local law AND keep it within the six-plant limit – "notwithstanding," or regardless of, anything written in 11362.1.

Once and for all, this is the proof we've all been seeking. Prop. 64 does not protect a patient's most hard-won right: the right to cultivate their own medicine in quantities necessary for their particular ailments.

However, it is understandable that Prop. 64's supporters have been duped into believing that patients' right to unlimited cultivation would not be affected: The drafters of Prop. 64 are very clever, indeed, and have done quite a convincing job of giving the appearance of protecting patients' rights, even though in reality, they revoke them. 

And I'm not the only one that Prop. 64 deceived.

When I met up with Chris Conrad in June, a long-time patient advocate and spokesperson for Prop. 64 who often represents the initiative in panel discussions, he assured me multiple times that the initiative would not affect patients' current right to grow an unlimited number of plants, or impact Prop. 215 at all. He even pulled up the text of Prop. 64 on his phone to prove it to me... yet he could not. He scrolled and scrolled as I patiently waited, but proof never came. He finally admitted that he couldn't find it – not at all surprising, considering that it isn't there – and promised to email me when he came across proof. Needless to say, I'm still waiting for that email.

So, w
hile Prop. 64 masquerades as a great protector of patient rights, this is a deception: In reality it would make California's 2 million currently legal cannabis patients potential felons overnight if they continue to grow and possess what they're currently allowed. Proponents of Prop. 64 seem to be working under the apparent assumption that no one would actually bother reading such a dense initiative in the first place – or be able to understand it if they did. In the eyes of medical marijuana patients and supporters statewide, this is yet another nail in the coffin for Prop. 64.

When Washington made a similar move to reduce patient access, 
Vivian McPeak, Executive Director of Seattle Hempfest wrote, That’s... shameful. Especially when our nation... is in the midst of a deadly opioid drug overdose epidemic. These... senseless, money-grab policies will cost lives and cause suffering.And the timing could not be worse for patients, whose legitimate medical cannabis use saved Medicare more than $165 million in 2013, according to a recent study in Health Affairs.

With the looming passage of the Trans-Pacific Partnership (TPP), prescription medications could soon be out of reach for millions of people, because it would ban production of generic versions of costly medications for several years. That means medical cannabis may become more necessary than ever – not just for current patients, but for anyone who relies on prescription medication for their health and well-being.

In this regard, Prop. 64 is California's own personal TPP. It takes the right to grow as much as necessary away from patients and hands it over to corporate mega grows, which would be granted free reign to cultivate literally without limitation while patients might find it so difficult to grow at home they would be forced to
buy their medicine from corporate cannabis cartels at inflated prices in the highly-taxed recreational market. This is what “protecting patients' rights” looks like under Prop. 64.

If you think that merging the two systems would have no negative impact on patients, think again. Four years after the first recreational initiatives passed, we now have a clear example of what could happen under a consolidated market. It comes from Washington State, in the form of a cautionary tale about how legalizing recreational cannabis effectively ended medical marijuana in that state, in spite of recreational proponents' promises that it would never happen. This is essential reading for patients and patient advocates -- perhaps the most essential component of this entire article. But be forewarned: it's heartbreaking. Read it here.


While it is tempting to draw the conclusion that legalizing recreational use will lead to decreased arrests, this is not necessarily true in the unique case of the Golden State. As it is today, anyone 18 and over can already possess the one ounce that Prop. 64 would legalize without getting arrested, without going to jail, without getting a criminal record and without being excluded from federal student aid and other government programs because simple possession is only an infraction, sharing the same status as a parking ticket, punishable by at most a $100 fine, and only rarely enforced. Moreover, thanks to Prop. 47, a measure passed in 2014 that reduced personal possession of almost all drugs from felonies to misdemeanors, California is already independently freeing nonviolent drug offenders.

In reality, “[h]ardly anyone is locked up in California prisons or county jails on any type of marijuana sentence – whether for stashing bushels or large-scale trafficking,” reports George Skelton in the Los Angeles Times. “In prisons, only about three-tenths of 1 percent of the total inmate population is incarcerated for a marijuana offense. Of total California felony arrests last year, according to the state attorney general, just 3 percent were on any marijuana charge. And for misdemeanor arrests, it was less than 1 percent,” he adds. Yet “no matter how rooted in falsehood... ending the 'failed drug war,' focusing on the 'real criminals' and 'unclogging the courts' is one of [Prop. 64 proponents'] favorite arguments.”

In fact, the Drug Policy Alliance (DPA) used this deceptive argument in a recent article making fallacious claims that Prop. 64 would prevent thousands of marijuana arrests. Even the article's title is misleading:It’s Not Legal Yet: Nearly 500,000 Californians Arrested for Marijuana – in Last Decade” [emphasis added]. But let's be honest: In the realm of drug policy, a lot has changed in California in the last decade. If you're one who just scans headlines without digging deeper, you might be shocked to see that figure. The DPA is apparently banking on it, because a casual read of the article shows the actual arrest rates for cannabis in California are not so scary at all.

Consider these statistics. A decade ago, in 2005, there were 35,011 adult misdemeanor cannabis arrests. But after California downgraded possession of one ounce from a misdemeanor to an infraction in 2011, misdemeanor cannabis arrests tumbled a whopping 93 percent, down to a comparatively negligible 2,243 in 2014. What's more, felony cannabis arrests dropped a dramatic 33.3 percent last year, which NORML says is attributed to the 2014 passage of Prop. 47, the most progressive piece of drug policy in the nation.

So while Jolene Forman of the DPA attempts to discredit the notion that “marijuana is essentially legal in California” by claiming that “thousands continue to be arrested annually for marijuana activities,” what she neglects to mention is that none of these arrests are for offenses that Prop. 64 would legalize.

Contrary to what one might expect from something calling itself a “legalization” initiative, Prop. 64 keeps nearly all cannabis laws on the books. Most of the offenses that people could get arrested for – such as selling small amounts, large-scale trafficking, growing more than six plants and possessing more than one ounce – will remain arrestable, criminal misdemeanors and/or felonies if Prop. 64 passes, punishable by up to 6 months in jail or up to four years in state prison. By legalizing something that is already a non-arrestable offense, Prop. 64 does almost nothing to reduce arrests.


Thanks to the Prop. 47, which passed quietly in 2014, simple possession of almost all drugs has been reduced from a felony to a misdemeanor, and as a result, California is already single-handedly and independently drastically reducing drug arrests and the prison population across the state – no convoluted recreational initiative necessary.

Over 1 million nonviolent offenders, most of whom were arrested on drug charges, will be impacted by Prop. 47, as they now face markedly reduced penalties – such as fines and probation instead of jail time. Hundreds of thousands of nonviolent ex-felons have already applied to get their records expunged.

In Los Angeles, home to the nation's largest jail system, drug arrests fell one-third in just the first year of its passage. Nearly 10,000 inmates will be eligible for resentencing, and “more than 4,300 state prisoners have already been resentenced and then released.” And here it bears repeating that felony cannabis arrests dropped a full one-third last year, which NORML says is credited to Prop. 47.

In addition to the overwhelmingly positive effects Prop. 47 is having on nonviolent drug offenders, the new law is also saving California money to the tune of hundreds of millions of dollars. Gov. Jerry Brown was able to reduce his proposed annual budget by $73 million – more than either Washington or Colorado made last year in recreational pot taxes – and cut the use of private prison beds in half because of Prop. 47. And a report from the Legislative Analyst’s Office estimated that California would additionally save $100 million - $200 million beginning this year because this state is now home to the most progressive drug policy reform in the land.

To put that in perspective, Washington State spent around $200 million enforcing pot laws for a full decade, from 2000-2010. Even without Prop. 64, California will save that much this year alone. So, California is already making historic, herculean strides in the arena of drug reform with policy that is much broader and far-reaching than anything Prop. 64 even purports to be.


Proponents of Prop. 64 have been attempting to woo voters with statistics on how African Americans are arrested for cannabis at higher rates than everyone else. But what they fail to mention is that Prop. 64 won't legalize any of the offenses African Americans (or almost anyone) get arrested for. They also neglect to mention that in states that have legalized, racial disparity in arrests either continues unabated, or gets even worse.

In Washington and Colorado, African Americans are still arrested at disproportionately higher rates more than twice that of whites in both states. In Colorado, African Americans are arrested at even more disproportionate rates than before legalization, according to a new report from the Colorado Department of Public Safety.

The reason for this is twofold. First poor, urban communities remain heavily policed, rendering these groups easy targets even under legalization. Second, the cannabis offenses urban communities are most likely to get busted for – selling, possessing more than one ounce and transporting – would remain totally illegal, punishable by up to 4 years in prison.

Remember, in California, no one gets arrested for carrying the ounce that Prop. 64 would legalize. However, what African Americans are arrested disproportionately for is selling cannabis – a crime which Prop. 64 would legalize only for those wealthy and connected enough to afford licenses to circumvent these prohibitions. It is telling that in Colorado, alongside racial disparity in arrests intensifying since legalization, “intent to sell” arrests increased by 50 percent the first year.

[B]y itself, legalizing marijuana possession changes none of this,” Tom James writes in The Atlantic. “[E]ven as legalization spreads, young black men will continue to be arrested at disproportionate rates for selling the drug. In turn, this leaves intact a version of the same specter that helped spur legalization in the first place: An arrest record’s scarlet letter will continue to blight the collective futures of urban communities of color....”

So, while Prop. 64's supporters wildly misconstrue the impact the initiative would have on urban communities as a way to gain sympathy and votes, in actuality, Prop. 64 would do little to keep African Americans out of jail for cannabis. Urban and poor people of color would continue to be imprisoned and have their lives destroyed for “selling weed,” while Prop. 64 would let wealthy white males get richer “selling cannabis” legally. Thus, the crisis of disproportionately arresting communities of color would only persist.

Even worse, by reinstating something similar to the “three strikes, you're out” policy that has so decimated black and poor communities, Prop. 64 is poised to send many more disadvantaged people to jail. A third offense in almost any category – possessing more than one ounce, selling any amount, transporting, and even sharing cannabis for those aged 18-20 – could land offenders in prison for up to 4 years. And who generally gets arrested again for the same offense? People in heavily policed neighborhoods.

Not only would the seemingly lower penalties Prop. 64 supporters talk about not really apply to most young people of color, the initiative could be truly detrimental to the urban poor, as any misdemeanor conviction makes offenders ineligible for government assistance programs, including student aid, welfare and public housing. This would severely damage the black communities Prop. 64 supposedly would save.


Prop. 64 claims that it “protects small farmers” by including “anti-monopoly provisions,” but an anti-monopoly clause does not preclude corporate takeover, only a level playing field does. But by allowing commercial mega grows of unlimited size, Prop. 64 sets the industry up to be dominated by those who can afford to produce literally tons upon tons of cannabis (using enormous amounts of energy and water), at the expense of the small farmers the initiative only pretends to protect. The mom-and-pop cultivators that have been the backbone of the industry for generations would be priced out of competition in short order. Hezekiah Allen, a Humboldt-based spokesperson for the California Growers Association, believes this could “result in a catastrophic economic collapse for huge swathes of California.”

It's worth noting that earlier versions of Prop. 64 did not have an “anti-monopoly” clause. This was added to the initiative only after last year's legalization debacle in Ohio, where, in a similar case, the millionaire proponents of a recreational initiative openly discussed corporatizing and monopolizing the industry, and even funded the initiative through investors who were promised massive warehouses if the initiative passed.

In a mad dash to cover his own corporate intentions, the creator and primary backer of Prop. 64 – billionaire Sean Parker, former president of Facebook who was accused of single-handedly destroying the music business when he created Napster – sent his attorneys back to add an “anti-monopoly clause” to convince Californians that what was so clearly set to happen in Ohio would not happen here. But once again, this is a deception.

While Prop. 64 claims to keep corporate mega grows out of the industry, this only applies to the first 5 years of legalization. After that time, millionaire Weedmaps founder Justin Hartfield – the second largest investor in Prop. 64 after Parker – intends to turn the current farm-to-table cannabis model into Big Tobacco. “It's just going to be me,” he said in The Wall Street Journal, referring to his plan to single-handedly take over the industry. “Philip Morris is not going to move in until it's 100% legal for them to do so. By that time, they're going to buy me and then do it. ...I'm going to be the one leading the charge.

Small farmers will barely have enough time to build a brand before the mega-grows with unlimited plant numbers overtake the industry and undercut them out of existence. This is not leveling the playing field; this is a corporate cannabis coup.

Kleiman is likely correct that Prop. 64 will benefit corporate interests,” says attorney Vince Sliwoski in the Portland Mercury. “Wealthy people typically... fund pot initiatives because they see a business line on weed.” The fact that there is no provision in Prop. 64 to limit how much cannabis mega grows can produce is no accident. Parker and his billionaire boys' club aren't funding a recreational pot initiative purely out of altruism; for them, this is a business investment in corporate cannabis.

But a state like California – that values the contributions of small farmers more than corporate aspirations of becoming “the Philip Morris of weed” – may just be too progressive to elect to have the current cottage cannabis industry subsumed by Big Marijuana.


If you're beginning to feel misled, you're not alone. Even a California judge recently ruled that Prop. 64 has “made misleading statements.” Take for instance the patently false assertion on its website about “protecting workers.” There is absolutely nothing in the entire text of Prop. 64 that supports this claim. In fact, the initiative states the opposite. Prop. 64 offers no protections against being fired for cannabis consumption, while explicitly protecting employers:

Sec. 11362.45
Nothing in section 11362.1 shall be construed or interpreted to...
(f) affect the ability of employers to have policies prohibiting the use of marijuana by employees or prospective employees.

Clearly, what Prop. 64 proponents say, and what the initiative will actually do, are two highly incongruous things.


Prop. 64 appears to legalize personal cultivation. Once again, the text proves this is not what it seems. In spite of proponents' claims, Prop. 64 allows cities and counties to ban all but indoor cultivation.

(3) Notwithstanding paragraph (3) of subdivision (a) of Section 11362.1, a city, county, or city and county may completely prohibit persons from engaging in actions and conduct under paragraph (3) of subdivision (a) of Section 11362.1 outdoors upon the grounds of a private residence.

While literally anyone can throw a seed outside and let Mother Nature do the rest, Prop. 64 does not grant the right to simply plant a seed in the ground and let it grow. In fact, since Prop. 64 gives cities and counties broad rights to ban outdoor growing – and, to show their opposition to the initiative, 75 percent of local governments already have, or are considering bans – the majority of Californians will only have the option to grow indoor. But indoor cultivation requires careful attention to every minute detail – from temperature, to humidity, to nutrients, to pests; not to mention sophisticated knowledge of horticulture. And growing indoors requires written consent from the landlord, a dedicated space and carries extremely high potential for creating mold.

So, while proponents claim the initiative will legalize home grows of six plants or less, what they neglect to mention is that the freedom to grow outdoors would apply only to residents of a few localities; that number is per residence, not per person; it would be legal only under highly restrictive conditions; and if you break the rules, you could go to jail for 6 months or prison up to 4 years.

(3) Not more than six living plants may be planted, cultivated, harvested, dried, or processed within a single private residence, or upon the grounds of that private residence, at one time.

If you take advantage of the privilege to grow six plants, but you live with a roommate who also grows a plant or two, you both will be criminals under Prop. 64. And the punishment for growing seven plants or more under so-called “legalization”? A harsh six (6) months in jail and/or a $500 fine – unless you have certain prior convictions, in which case Prop. 64 allows for prison time – actual state prison, not county jail – for two, three or four years... for growing a plant that would be “legal”:

Sec. 11358
(c) Every person 18 years of age or over who plants, cultivates, harvests, dries, or processes more than six living marijuana plants shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment.

(d) Notwithstanding subdivision (c), a person 18 years of age or over who plants, cultivates, harvests, dries, or processes more than six living marijuana plants, or any part thereof, except as otherwise provided by law, may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code if: (1) the person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code

It seems that what Prop. 64 considers “legal” is much different – even the opposite – of how the rest of California defines the word.  

And since Prop. 64 allows cities and counties to override state law by “allowing local governments to regulate marijuana-related activities” (Section 2, E), what is legal for the rest of the state might be banned for you – including simple possession. So, unless you live in one of the rare localities that permits outdoor cultivation, you'd better school yourself on synthetic nutrients, hydroponic growth mediums and industrial lighting, all of which have significant start-up costs and will increase your PG&E bill substantially.

If this sounds daunting, it's because it is. Practically speaking, having a home grow would be extremely difficult for most residents. And this is intentional: Since Prop. 64 was written not to decriminalize cannabis, but to legalize a recreational commercial cannabis industry, its goal is to get as many people as possible to buy cannabis. And the easiest way to do that is to make it nearly impossible for them to grow their own.


Despite the placatory provisions Prop. 64's proponents claim would “protect the environment,” it is apparent from the unsustainable cultivation policies it would enact that this initiative will lead to unmitigated environmental disaster if it should pass.

During this time of cataclysmic climate change and California's historic, biblical drought, to say that Prop. 64's cultivation policies would be environmentally irresponsible would be an understatement. And virtually relegating growing to indoors by allowing bans on outdoor cultivation is only half of it.

California's current indoor cultivation industry already creates an enormous carbon footprint, producing greenhouse gas emissions equivalent to adding 1 million cars annually, according to pioneering research by Evan Mills. In Colorado, The Denver Post reports an astonishing 45 percent of Denver's annual increase in electricity usage is attributable to the legalization of recreational cannabisand outdoor cultivation is permitted in that state.

California would stand to face a far higher burden on our precious resources, because not only does Prop. 64 effectively relegate personal cultivation to indoors, but, even more unsustainable, Prop. 64 allows corporate mega grows to cultivate an unlimited number of plants. Let that sink in for a minute. That could be hundreds of thousands of plants – in one warehouse. Imagine the resources required to grow hundreds of thousands of plants even in nature. The burden on our resources – particularly our dangerously low water supply – would be astronomical.

We are on track for having the worst drought in 500 years,” B. Lynn Ingram, a professor of earth and planetary sciences at U.C. Berkeley, told The New York Times. In the Central Valley, California's agricultural bloodline and the epicenter of this epic drought, the dry spell has reached such apocalyptic proportions that CBS reports it “could wipe entire towns off the map.” Many residents are completely without running water and “living in third-world conditions... Wells are going dry, jobs are harder to come by and families are already moving, either to different states or even Mexico in search of work,” according to CBS.

Wait a minute: the drought in California is so severe that people are moving to Mexico to find work? Damn.

Elsewhere in the state, several rural communities have recently come within 60 to 120 days of running out of drinking water, threatening the survival of some 40,000 residents. California's “main municipal water distribution system hasn't had enough water to supplement the dwindling supplies of local agencies that provide water to an additional 25 million people,” according to The New York Times. And there's no end in sight.

But Prop. 64 takes no heed of this environmental disaster taking place in our backyard, allowing corporate mega grows to cultivate an unlimited number of plants, even though cannabis requires an astounding six gallons of water per plant per day. Never mind outdoor grows that have discrete, finite seasons: In the realm of commercial cultivation, with greenhouses and indoor grows, cultivation is perpetual.

Let's put that into perspective. GrowCo, in Colorado, has two 90,000-sq.-ft. greenhouses. Using RAND's estimate that each square foot represents 1.4 plants, this single location could grow some 252,000 plants perpetually. That would require over 1.5 million gallons of water per day and result in well over half a BILLION gallons of water per year – for just one license. The only reason Colorado is not on the brink of environmental catastrophe due to unsustainable water usage is because no matter how big the space, Colorado limits the number of plants a licensee can grow. With Prop. 64 allowing unlimited mega grows, California would be cultivating disaster.

Californians are a population of progressives. We drive more hybrid cars than anywhere else in the country. For an initiative that must win the approval of the most environmentally conscious voters in the union, Prop. 64 has already failed.

Despite the poll by the Public Policy Institute of California suggesting 53 percent of residents favor legalization, a more recent PPIC study indicates a formidable 84 percent of Californians are either “very concerned” or “somewhat concerned about more severe droughts,” and 58 percent think the drought “is the most important environmental issue facing California today.” Indeed, under the circumstances, being concerned about the state's rapidly diminishing water supply and simultaneously supporting Prop. 64 is a conflict that is both incompatible and irreconcilable.

This is not a question of ending prohibition – remember, California is single-handedly doing that with measures that are light years ahead of Prop. 64. So, if this initiative is really just about creating a commercial cannabis industry, not for medical need but for recreation – you know, “just for fun” – can we afford such far-reaching consequences in the name of frivolity? Unlimited is unsustainable. And for California's progressives, it just may doom Prop. 64.


It was not supposed to work out this way. There are some days when I question if we should have just done nothing, and let things stay the way they were.
Vivian McPeak, reflecting on I-502
In a state that just passed the most progressive drug policy reform in the nation, doing nothing is actually better than Prop. 64.

Prop. 64 is extremely convoluted, rife with inconsistencies, and leaves so much up to interpretation that it is bound to have unintended consequences for the people it's supposed to protect.

Even NORML's Dale Gieringer, in an article on, concedes that “Prop. 64 is very long and complicated, with unnecessary hang-ups and restrictions.... It's not the best initiative ever written,” he adds; “it has some problems” – including something as seemingly straightforward as the quantity of concentrates one may possess. One section says eight grams would be permitted [Sec. 11362.1 (a)(2)], while other sections punish possession above four grams [Sections 11357(a), (b) and (c) and 11360].

But even with all of its imperfections,” some may ask, “isn't Prop. 64 better than nothing?” Well, in the unique case of the Golden State, the answer is no. This is California, not Kentucky. California is home to the most advanced and revolutionary drug policy in the nation since Prop. 47 downgraded almost all drugs for personal use from felonies to misdemeanors. And our current medical cannabis law is so liberal it was widely considered to be “back-door legalization” when it passed. For all intents and purposes, cannabis is legal in California. One need nothing more than $35 for an annual doctor's recommendation and a condition as universal and benign as stress or insomnia to enjoy the privilege of shopping at any one of hundreds of licensed dispensaries and growing an unlimited amount for personal use. Even those without a recommendation can't get arrested for possessing an ounce, or even buying it.

Perhaps in every other state in the country, almost any legalization initiative might be an improvement over current conditions. However, in California, an initiative like Prop. 64 would be retrogressive and do more harm than good, particularly for urban poor communities and medical marijuana patients.

Is ending prohibition necessarily dependent upon implementing a massive, unwieldy corporate cartel and regulatory scheme anyway? The RAND corporation thinks not: “Marijuana policy should not be viewed as a binary choice between prohibition and the for-profit commercial model we see in Colorado and Washington” [emphasis added]. There is a better way. And California is already well on that path with its simple yet effective sweeping drug policy reform, which it has achieved with none of Prop. 64's harmful side effects.
Especially if an initiative reduces the freedoms that residents can currently access, it is not true that any legalization initiative is better than nothing. If anything, doing nothing is better than this initiative.


Typically, voter initiatives cannot be amended except by another voter initiative – it's the legal equivalent of “power to the people.” However, by giving legislators authority to change the initiative, Prop. 64 takes a “power to the people” initiative and makes it a “power to the legislature” initiative, which can be changed at their whim, without voter approval or consent.

Prop. 64 will be made into sausage by the legislature, repurposed further by administrative rules, and eventually look quite different than what is proposed this November,” Sliwoski said in The Portland Mercury.

Any so-called “voter initiative” that adds a special provision granting the legislature power to change it without voter approval should be approached with extreme caution, as it does not take into account the crucial consideration of whether those legislators have the knowledge, foresight, experience or compassion to do so effectively. And frankly, oftentimes, they don't.

Take for example the case of three teens who got caught in Washington state with a small amount of recreational cannabis just last year. Thanks to poorly drafted legislation, what was previously a misdemeanor offense with a maximum 90 days jail time and a $1,000 fine was interpreted as a felony with a 5-year prison sentence and a $10,000 fine... for teenagers... in a state that has legalized recreational cannabis. And apparently this clause and its extreme consequences slipped by unnoticed.

In an article for Reason, senior editor Jacob Sullum asks,

Did Washington legislators accidentally make it a felony for someone younger than 21 to possess any amount of marijuana, as a spokeswoman for that state's governor suggested last week? Did they do it on purpose, as one key legislator claimed? Or did they not do it at all, as the group representing Washington's prosecuting attorneys has concluded? [C]onfusion on this point casts an unflattering light on legislators' ability to write laws and prosecutors' ability to understand them.”

The Washington State Liquor and Cannabis Board's enforcement chief, Justin Nordhorn, stated that this was not “the intent of the legislation,” but he “nevertheless conceded that it 'does appear' [that] underage possession 'is a class C felony....'” Jaime Smith, a spokeswoman for Gov. Jay Inslee, concurred: I can only tell you that this was not the intention...”

Attorney Rick Horowitz, when analyzing California's 2009 divisive, equally poorly written and ultimately failed recreational initiative, Prop. 19, warned that it is all too likely that because of the wording of a proposed initiative, “Someone will make a determination with which you disagree. Someone in power. Someone whose interpretation results in the law having consequences the voters did not consider.” In other words, intention is not enough. If the wording is so ambiguous that it’s open to interpretation, then the law could have unintended consequences for the people it was meant to protect.

Rick Laws, a public defender representing one of the Washington teens facing 5 years in prison and a $10,000 fine, brings the point home: “That's an awfully high price for a few people to have to pay for faulty legislative work.”

It's not surprising that state legislators don't know enough about cannabis – medical or recreational – to know how to effectively regulate it. Most of them have never even consumed cannabis, and were likely educated on Reefer Madness. What is surprising is that anyone would vote for a state initiative that gives our notoriously uninformed legislators free reign to alter it with no oversight. What is even more surprising is that voters are considering supporting a cannabis initiative that's being put forth by someone who is himself vehemently opposed to cannabis.

Dr. Donald Lyman of Sacramento, chief proponent of Prop. 64, is a retired physician and former board member of the California Medical Association who believes cannabis has no medical benefit, despite the fact that science has repeatedly proven otherwise. In fact, he calls cannabis “a dangerous and ill-advised substance.” Perhaps he also thinks the Earth is flat. Do you think he is qualified to lead our progressive state on legislation on how to legalize? 

Sean Parker, meanwhile, the billionaire who paid attorneys to draft the initiative on his behalf, is former president of the notoriously anti-cannabis Facebook Corporation. To this day Facebook routinely closes accounts that appear to be pot-related. Does anyone else think it a bit curious that a billionaire, anti-cannabis one-percenter suddenly wants to create a recreational initiative? Surely, it's not on moral grounds. And if his plan is to advance corporate interests to control the billion-dollar cannabis industry, as it certainly appears to be, then what does that mean for the rest of us, the other 99 percent, and why exactly should we support him in this dubious endeavor?


Above all, the goal of any recreational initiative should be to simply stop arresting people for cannabis – which, as mentioned above, California has already achieved to great success. We don't need another initiative to 'grant' us rights we already have. If anything, what we need is a law against initiatives claiming to do things that they won't. 

As it turns out, Prop. 64 is like so many prescription medications: regardless of what it aims to do, the side effects can be fatal. Beyond that, a recreational system is wholly unnecessary to the goal of ending prohibition. We just need what people are already doing to no longer be considered a crime -- decriminalization, not legalization. And under California law as it is today, it isn't a crime to possess an ounce or grow as much cannabis as your heart desires. It isn't even a crime to buy cannabis in California. We therefore don't have the urgency factor that less progressive states might have, and our latest arrest and incarceration statistics bear that out.
It is not incongruous to be for legalization and against Prop. 64. Given the long list of potential unknowns and unintended consequences, it is smart, reasonable, and sensible. Because a recreational cannabis industry would make some people very rich, voting in this initiative would be extremely difficult to undo. As the nation's leader in drug reform, social justice, and environmental sustainability, surely California can do much better than Prop. 64.

Don't copy us. [The legislature]... might screw it all up... and destroy the gains you worked so hard to win, like they’ve done to us here in Washington.
- Vivian McPeak