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.
1) MYTH: PROP. 64 WILL BRING TAX REVENUE WILL FUND SCHOOLS, HEALTH CARE, INFRASTRUCTURE
FACT: NO TAX REVENUE WILL GO TO GENERAL FUND UNDER PROP. 64
(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 Newsom – who 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.
2) MYTH: PATIENTS WILL BE EXEMPT FROM TAXES
FACT: PATIENTS COULD FACE OVER 20 PERCENT TAX INCREASE
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.”
(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.
FACT: PROP. 64 LETS LOCAL GOV. DECIDE PATIENTS' RIGHTS
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.
“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.
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.
(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:
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 section – 11362.2 – “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:
(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.
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, while 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.
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.
4) MISLEADING CLAIM: 500,000 POT ARRESTS IN LAST DECADE
FACT: ALMOST NO ONE IS IN JAIL FOR ANY OFFENSE PROP. 64 WOULD LEGALIZE
5) MYTH: PROP. 64 IS NECESSARY TO REDUCE DRUG ARRESTS
6) MYTH: RACIAL DISPARITY IN ARRESTS WILL DECREASE
FACT: PROP. 64 WILL DECIMATE SMALL FARMERS
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.
8) MYTH: PROP. 64 WILL PROTECT WORKERS
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:
(f) affect the ability of employers to have policies prohibiting the use of marijuana by employees or prospective employees.
9) MYTH: PROP. 64 LEGALIZES HOME GROWS FOR ALL
FACT: FEW COULD LEGALLY GROW UNDER PROP. 64
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.
It seems that what Prop. 64 considers “legal” is much different – even the opposite – of how the rest of California defines the word.
10) MYTH: PROP. 64 WOULD PROTECT THE ENVIRONMENT
FACT: BY ALLOWING UNLIMITED MEGA GROWS WITH SUCH LIMITED RESOURCES PROP. 64 IS POISED TO DESTROY THE ENVIRONMENT
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.
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.
PROP. 64 LETS LEGISLATURE ALTER IT WITHOUT VOTER APPROVAL
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.