This November, a marijuana legalization measure will be put to voters in the most populous and influential US state. If Californians vote “yes” on Proposition 64—which beat out 21 competing cannabis legalization initiatives to make it onto the ballot—their decision will resonate far beyond the Golden State’s borders.
It’s pretty momentous stuff. Contentious, too. Just this week, Prop 64 became the subject of a lawsuit, in which proponents allege that some of their opposition, including Sen. Dianne Feinstein, lied in materials for the voters’ guide to the ballot. But how did Prop 64—née AUMA (Adult Use of Marijuana Act)—get chosen ahead of all those rival initiatives? And why is a seemingly small but very vocal group of pro-legalization activists determined to #StopProp64?
“The marijuana community has always been incredibly fractured,” says Lynn Lyman, California state director for the Drug Policy Alliance (DPA), one of the organizations behind Prop 64. “You saw that in 2010 over Prop 19 [a previous legalization attempt that was narrowly rejected]. It’s never been a unified movement here, and that’s true across the country.”
Coalition-building and compromise among groups within this fractured landscape were vital to AUMA making it onto the ballot.
“There was a lot of work that went into it in 2015, even 2014,” says Lyman. “We had regular drafting meetings, trying to develop consensus around taxation, regulatory issues… all that work that was done early on informed the initiative. It has had a lot of input from stakeholders [including law enforcement, parents, public health officials, environmental protection groups, and criminal justice organizations]. None of us got everything we wanted,” she says. “But at least from my perspective at DPA, our priority issues were addressed, and we could meet half-way. Many of the groups who are sort of negative toward Prop 64 now actually helped draft it, even though they may not feel that way. ”
Lyman is also quick to acknowledge another factor that led to AUMA’s victory—one that irks some of its detractors. “The fact that we could stay together with a strong coalition that could fund us” was essential, she says. Funding allowed them to hire Gail Kauffman and associates—”a very professional political consulting firm”—whose “expertise ensured that this made it to the ballot.”
Most observers believe Prop 64 will be successful; recent polls say that (*1) 60 percent of Californians support legalizing marijuana. But criticisms of Prop 64 from inside the pro-legalization community fall into a few different baskets.
The “Billionaire Boys’ Club”
Some activists object to the mixing of money and politics in general, and to the source of Prop 64’s funding in particular. Sean Parker, the billionaire Napster co-founder, is one of its main backers, and some critics are suspicious of his involvement (to put it mildly).
“DEAR SEAN PARKER… GO FUCK YOURSELF…. LOVE, WEED” reads the headline of an article by Mickey Martin, weed activist and founder of Compassion Edibles and Tainted Inc.
“AUMA is a hostile attempt by the Billionaire Boys’ Club to steal California’s cannabis industry,” writes “Cannabis Patient Voice” in a blog post on Patient Advocacy Network.
They fear that Parker, who has donated about $2.8 million to AUMA, is trying to do what a group of wealthy investors attempted in Ohio—funding a law that would give them control over the newly legal marijuana industry, pushing out smaller local parties. Ohio residents voted “no” on that bill, holding out for a future legalization effort on better terms, and some activists hope the same will happen in California.
Ellen Brown, an attorney, author and president of the Public Banking Institute, a think tank, takes this fear of corporatization a step further. Not only will Prop 64 “squeeze home growers and small farmers out of the market,” she writes, but “’Legalization’ through AUMA will chiefly serve a petrochemical/pharmaceutical complex bent on controlling all farming and plant life globally.” She draws on the writings of journalist William Engdahl, who alleges that George Soros is investing in marijuana legalization in order to support biotech company Monsanto’s plan to create a GMO marijuana strain. George Soros has been a shareholder of Monsanto (at least as of 2013). He gave a last-minute $1 million donation to Prop 19 in 2010, and also funds and is on the board of the Drug Policy Alliance. He has endorsed and funded marijuana legalization efforts for years.
In the past, Engdahl appears to have been associated with the Larouche movement, a political group that has devoted considerable efforts to anti-Soros activities. Monsanto has denied that it is working on GMO strains. Engdahl writes: “Monsanto without much fanfare conducts research projects on the active ingredient in marijuana, namely THC (tetrahydrocannabinol), in order to genetically manipulate the plant.”
Monsanto, Engdahl alleges, has an “exchange of technology” agreement with Bayer Pharmaceuticals, which does research on cannabis with GW Pharmaceuticals, giving Monsanto has access to cannabis research. Brown argues that the recent news that Bayer is negotiating a purchase of Monsanto indicates that soon Monsanto will have even more access, and together they will become “the world’s largest supplier of seeds and chemicals.”
Regarding these connections, DPA’s Lynn Lyman says: “DPA does not have any relationship with Monsanto. One of DPA’s funders, the Open Society Foundations, funded by George Soros, supports a range of projects globally in the areas of human rights, education, governance, accountability, and health, and may have a portfolio of investments that includes Monsanto. After these unfounded accusations surfaced a couple years ago,” she continues, “Monsanto publicly communicated that the company has no link ‘to the development or commercialization of marijuana …’ and ‘is not working to patent genetically modified marijuana seeds.'”
Big Government and Big Cannabis
Some people feel that Prop 64 allows for overregulation. They object to its length—62 pages—and the complicated rules involved in setting up the new legal industry. They also think Prop 64 doesn’t do enough to protect small growers.
Hezekiah Allen, executive director of the California Growers Association, which advocates for marijuana farmers, business owners and patients, says: “The growing consensus is that this is a really bad regulatory framework, but a lot of people are going to vote for it anyway because there is not a viable alternative.”
Prop 64 does ban large cultivator licenses (over 22,000 sq. ft.) for five years, as a way to give small farmers a “head start.” Even after five years, large cultivation licenses would only be granted under the discretion of state regulators, whose job it would be to prevent monopolies. But critics don’t think it goes far enough.
“We believe there should be a cap on the size of the cultivations,” says Allen. “Proposition 64 favors corporate consolidation, and the market response has already reflected that.” There has been a “land rush” in places like Humboldt, Mendocino and Trinity counties—the “Emerald Triangle”—which already produces 60 percent of the weed consumed in the United States.
“The question is not whether we are pro or against regulation,” Allen says. “It is whether they are regulations that will allow us to continue longstanding sustainable cannabis farming traditions, or whether new markets will sweep away what we’ve built over the last 40 years.” The counter-arguments are expressed, for example, by Students for Sensible Drug Policy (SSDP). The organization, which is endorsing Prop 64, states on its site that “AUMA is unique in that it places great importance on the value of small businesses, and seeks to protect these businesses within its framework for legal marijuana in California.”
“In order to prevent monopolization, AUMA requires that you must be a resident of the state to obtain a growing and selling license, prevents price-fixing, and creates a 5-year waiting period before large-scale business licenses can be issued,” SSDP adds. “Those who have prior convictions for drug-related offenses will not be barred from obtaining a license or employment within the industry.”
That last bit is important. Prop 64 will be the first bill not to actively prevent people who have been incarcerated on drug-law violation from making money off of legal weed—a policy that effectively discriminates against people of color and poor people.
Lyman tells me that the Prop 64 coalition was prevented from specifying that a certain percentage of licenses must go to people who have been incarcerated for drugs only because California does not allow state-level affirmative action. However, by not barring ex-prisoners from getting licenses, they hope certain counties will choose initiatives like the one in Oakland, in which at least half of new medical marijuana permits must go to people arrested for marijuana-related reasons within the past 10 years, or to people who have lived for at least two years within six police beats in East Oakland with high marijuana arrest rates.
Prop 64’s Impact on Medical Marijuana
One group of Prop 64 opponents includes some Californians who use medical marijuana and are concerned that it undermines or endangers Prop 215, or the Compassionate Use Act—the groundbreaking law which legalized medical marijuana in California back in 1996.
“[Prop 64] decimates Proposition 215 by absorbing medical marijuana into the initiative’s ‘non-medical’ scheme” writes Letitia Pepper, a California attorney and activist who uses medical marijuana to control multiple sclerosis, in an email to me. “AUMA… does NOT protect patients’ rights! It was intentionally and deceptively written so the PR people can CLAIM it protects patients’ rights, but it DOES NOT!”
Lyman challenges this narrative: “Not only does Prop 64 not undo any of Prop 215,” she says, “but the measure strengthens patient rights in three key ways.” First, she says, it “protects home grow for all adults, whether you’re a patient or not.” Under Prop 64, any adult over 21 can legally grow up to six plants, and medical marijuana patients can continue to cultivate up to 100 square feet. “Before, a city could ban home grow, but under our initiative the city could not ban it, as long as it grown inside or in ‘an enclosed structure like a greenhouse.'” Second, Prop 64 creates an exemption from California’s state sales tax—about 10 percent —for medical marijuana patients. (Patients would, however, still pay the 15 percent marijuana excise tax imposed by Prop. 64, plus whatever extra costs get passed down to consumers from cultivation tax and regulatory compliance costs.)
According to the Mercury News, Richard Miadich, a Sacramento attorney representing the legalization campaign, said the intent is to keep medical marijuana affordable enough that patients can still buy it without making it so comparatively cheap that recreational users will stay in that market.
Third, says Lyman, Prop 64 “strengthens the protection of parental rights.” If a parent uses medical marijuana, Child Protective Services cannot hold that against you in a custody decision.
Prop 64 would, however, overrule some policies enacted by the recent Medical Marijuana Regulation and Safety Act (MMRSA), which took effect in January. That law created a comprehensive state licensing system for the commercial cultivation, manufacture, retail sale, transport, distribution, delivery, and testing of medical cannabis. It created a mandatory middle-man distribution level between grower and seller, likely bringing up costs for patients.
MMRSA was characterized by Steve DeAngelo, founder of Harborside Health Center, the nation’s largest medical marijuana dispensary, as “a power play by the liquor lobby and the union that supports it, neither of which have ever lifted a finger to help medical marijuana patients suffering under these unjust laws. They’re attempting to parachute in and extract something like half the value of the state’s entire medical cannabis supply, even if it means doubling the cost of this vital medicine to patients, just so they can go from rich to even richer.”
So over-riding some of MMRSA might not be such a bad thing. DeAngelo says: “AUMA wisely removed the mandatory distributor provision, except for the highest volume level of cultivator. And that’s a good thing, but …the strategy of the liquor lobby is to get this distributor system in place now through MMRSA, and then when AUMA passes in November, it’ll go back to the legislature and try to convince them to edit the adult use initiative to its liking.”
The California Medical Association (CMA), which represents over 41,000 doctors statewide, supports Prop 64.
Sure, Prop 64 Is Far From Perfect
The most convincing argument against Prop 64 is that it doesn’t go far enough. People who want something more radical point out that it’s an overstatement to say Prop 64 “legalizes marijuana.” What it does is make it legal for adults 21 years and older to possess up to one ounce and cultivate up to six plants for personal use, in a state where personal possession and recreational consumption are already decriminalized, and medical marijuana is legal.
If and when, under Prop 64, there are still fines, jail and any other punishments for anything involving marijuana, these punishments will unfairly affect the poor, and be disproportionately enforced against communities of color. Fines themselves are of course economically discriminatory, and can result in jail time if you can’t pay.
Although Prop 64 will protect minors (17 and under) from arrest no matter whether they use or sell (they would only be punishable by community service, with their record sealed after age 18), its creators were unable to extend the protections to “non-minors who aren’t adults.” Lyman acknowledges this, but says it “is a weird status in our country for many things, not just marijuana.” Non-minors who aren’t adults will be subject to the possibility of an “infraction,” which is what currently exists for adults under decriminalization 0f personal use and possession; the penalty could be a $100 fine, and the county can add other fees.
That’s not good because, as Lyman tells me, DPA has analyzed how infractions have been enforced since 2011, when decriminalized marijuana offenses became infractions rather than misdemeanors. Data from LA and Fresno County indicated “that infractions were still being given out in a racially discriminatory manner.” And that will likely continue to be the case. You’ll also need a license to sell marijuana, and licenses cost money. If you’re caught selling without a license, the text of Prop 64 states that you “shall be subject to civil penalties of up to three times the amount of the license fee for each violation, and the court may order the destruction of marijuana.”
Can you still go to jail? “It is complicated,” says Lyman. She provided a chart that shows how sanctions for various activities would change under Prop 64. “For growing more than six plants (without a patient ID) you could potentially get six months, a $500 fine or both. Furthermore, there is the issue of people engaging in commercial activity without a license, which has a graduated sanctions approach. There are a multiple places where we’ve tried to advance racial justice in this initiative,” Lyman tells me, “but we weren’t successful in all [cases].”
One success they did have was with the policy that prevents license distributors from discriminating against people with drug convictions (and that’s all drugs, not just marijuana). Another is that under Prop 64, people with a prior conviction for a felony crime that would no longer be defined as one can go to court to get their records cleared. People currently incarcerated for an offense that would be changed by the new law would also have an opportunity to go to court for re-sentencing. Plus, a big percentage of tax income is going to be basically a way of implementing reparations to communities most hurt by the War on Drugs. The “community reinvestment fund” in Prop 64 would the first of its kind, going “back into communities that have been most impacted.”
Perfect Is the Enemy of Good
The people behind Prop 64 know that it is far from perfect. But even with the compromises they had to make to get it on the ballot, they believe their measure still greatly improves upon the status quo. It represents a classic drug policy reform dilemma: whether to take the incremental reform now and move forward, or to hold off now in hopes of getting better reforms at a later date. Most leading reform organizations lean towards the former strategy, as evidenced by the plethora of groups supporting Prop 64.
It’s important to remember that for all the criticism Prop 64 is getting from the Left, it also faces a lot of opposition from the Right. The East Bay Express reports: “According to campaign-finance reports, the No on Prop 64 [campaign] is primarily comprised of groups affected by the end of the war on weed—such as prison bosses, police chiefs, rehab clinics, prescription drug makers and alcohol interests—who stand to lose billions of dollars on legalization’s shift away from arrests, prison, pills and booze.” The special interest groups that profit from weed’s illegality played a big part in defeating marijuana legalization in 2010.
John Lovell, a lobbyist with California Public Safety Institute, led opposition to Prop 19 in 2010. He’s running opposition to Prop 64, too, and he’s competing with Prop 64 for law enforcement support. He’s already gotten financial support from California Correctional Supervisors Organization labor group, the Riverside Sheriffs’ Association, and the Los Angeles Association for Los Angeles Deputy Sheriffs.
If Prop 64 succeeds, its architects believe that their compromises will be an integral reason why. Because of the compromises, Lyman says, they were able to gain support of crucial, more conservative stakeholders, such as parents’ organizations and other law enforcement groups. Nevertheless, some critics on the Left still plan on voting against Prop 64 even though it’s the only legalization measure on the ballot—like Denise Dorey who says on her YouTube show, “We can wait until 2018” and try again.
Others though, like the editorial board of the East Bay Times, which endorsed Prop 64 this week, recognize that it “isn’t perfect,” but “the initiative is generally solid—and long-overdue.” It’s kind of like how many people on the Left feel about voting for Hillary. And speaking of Hillary, the presidential election is one reason many people feel it’s important to vote for Prop 64 right now.
“I’ve been through enough political campaigns to know that no piece of legislation—AUMA included—is going to make anybody completely happy,” says Steve DeAngelo. “There’s always something you don’t like and something you wish were in it. But until we pass it, we’re going to live in the shadow of ourselves or our family members having their lives ruined through arrests and incarceration. … And so I can’t imagine anybody who loves and cares about cannabis not embracing this initiative. Because we could be in terrible trouble if we don’t have this shield going into the next presidential administration.”
Lynn Lyman underscores DeAngelo’s words. “I’m really really excited about what we’re trying to do. If approved, it will be by far the most progressive initiative in the country. My hope is that this will be the new floor, not the new ceiling.”
By Sarah Beller - The Influence/Aug. 10, 2016
(*1) 60 % - California & Their Government, 2016 pdf attached
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