Miss de la Luz writes a blog called “Stoners Against the Prop. 19 Tax Cannabis Initiative“. She’s been telling everybody how she’s got hers (Prop 215) and Prop 19 would ruin it. Yes, her thesis is that Prop 19 legalizing a small garden and all its harvest, possession of an ounce away from the garden, and local option for commercial regulation of cannabis for 100% of the 3 million adults who smoke pot in California will somehow lead to some of the 10%-20% of Californians smoking pot under Prop 215 going to jail.
In her latest article she attacks court certified cannabis cultivation expert Chris Conrad and his rebuttal of her thesis:
Prop. 19 would actually make it ILLEGAL to possess marijuana if it was purchased anywhere other than a licensed dispensary:
Section 3: Lawful Activities: Section 11301: Commercial Regulations and Controls: (g):
PROHIBIT AND PUNISH through civil fines or other remedies THE POSSESSION, sale, possession for sale, cultivation, processing, or transportation OF CANNABIS THAT WAS NOT OBTAINED LAWFULLY FROM A PERSON PURSUANT TO THIS SECTION OR SECTION 11300.
Absolutely correct. If you purchase marijuana from a guy illegally selling marijuana on the street, you can be punished. The whole point of creating a system of legal sales of cannabis is to make sure adults are carded in a store like alcohol or tobacco.
However, the scare that you couldn’t possess any marijuana is ludicrous. Note this section is regarding commercial regulations and controls. As far as personal regulations and controls go, Prop 19 says:
Section 3: Lawful Activities
Article 5 of Chapter 5 of Division 10 of the Health and Safety Code, commencing with section 11300 is added to read:
Section 11300: Personal Regulation and Controls
(a) Notwithstanding any other provision of law, IT IS LAWFUL and shall not be a public offense under California law for any person 21 years of age or older TO:
(i) PERSONALLY POSSESS, process, share, or transport not more than ONE OUNCE of cannabis, solely FOR THAT INDIVIDUAL’S PERSONAL CONSUMPTION, and not for sale.
So after Prop 19, you’re walking around with an ounce in your pocket. A cop stops you and somehow he finds out you have an ounce on you. How does he prove where that ounce came from? Since you can hold an ounce of your own supply and since your ounce looks and smells like a dispensary ounce or a street ounce (a concept the Supreme Court calls “fungibility” – marijuana is marijuana is marijuana), unless they catch you in the act of buying that street ounce, any ounce you hold has to be assumed to be your personal ounce.
de la Luz’s main argument, one made consistently by the “I Gots Mine” crowd:
Nowhere in my article do I claim that marijuana is more legal when it’s decriminalized. I said it is more legal now because it IS legal now. Marijuana has been legal in California since 1996.
Really, I’ll have to mention that to the 78,514 Californians arrested in 2008 for marijuana offenses. In fact, marijuana IS NOT legal in California and since 1996 a handful of Californians have only been exempted from criminal prosecution under Prop 215 (except, of course, Eugene Davidovich, Donna Lambert, James Stacy, Jovan Jackson, Felix Kha, and a whole bunch of other people who thought they were legal under Prop 215 yet still ended up in a courtroom and behind bars for a time).
Specifically in Prop 215:
…patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
Which means that criminal prosecutions and sanctions for marijuana still exist. Shorter: it ain’t legal.
de la Luz also agonizes over whether the definition of “space” is being too vague…
Prop. 19 prohibits smoking “in any space while minors are present.” But what is meant by “space” and “present”? If you light up on the back patio and kids happen to be playing soccer next door, are you in the same “space” while minors are “present”? Is “present” the same house? The same room? Wafting distance? Yes? No? Maybe? Depends?
I’m always amused by folks criticizing Prop 19 for being too vague, when Prop 215 was one of the most vaguely-worded initiatives ever passed by the people of California. Fourteen years later it is still unclear whether dispensary sales outside of collective participation is legal under Prop 215 and SB 420.
While I understand the need of medical marijuana patients who may be parents to be able to medicate when their kids are around, I’m flustered by adults criticizing legalization on the grounds they might not be able to toke up around kids. Remember, de la Luz says “marijuana is legal”, the implication being that even recreational pot smokers – not just medical marijuana patients – can get a Prop 215 recommendation.
If you’re suffering from Lou Gehrig’s disease, sitting in your wheelchair medicating on the patio while your kids play soccer next door, I seriously doubt anybody will want to prosecute that, especially since under Prop 19, there would be no probable cause for a cop to investigate that pot smell wafting up from your back yard.
When an initiative is vague, one has to go to the purposes and intents to determine what the wording means. ”Space”, literally defined, is “the boundless, three-dimensional extent in which objects and events occur.” Minors are present in space, therefore Prop 19 makes all pot smoking anywhere in the universe illegal, right?
Of course not, because the purpose of Prop 19 is to legalize most adult use of cannabis, not eliminate it. So how far would cops and courts go in defining “space” and “present”? Let’s check Prop 19′s Ballot Summary:
Prohibits people from possessing marijuana on school grounds, using it in public, smoking it while minors are present, or providing it to anyone under 21 years old.
And the Purposes:
Regulate cannabis like we do alcohol: Allow adults to possess and consume small amounts of cannabis.
Implement a legal regulatory framework to better police and prevent access to and consumption of cannabis by minors in California.
And the Intents:
This Act is not intended to affect the application or enforcement … relating to possession on school grounds … relating to minors … relating to contributing to the delinquency of a minor…
Since the Purposes tell us we’re treating it like alcohol, what are the “space” rules for alcohol? In bars, taverns, casinos, and restaurants where alcohol is served, either minors aren’t allowed in the building or they are limited to where they can be (like, in the restaurant but not the bar). At an outdoor festival, often there is a “beer garden” where minors can’t get in and adults wear a wristband.
Since the Purposes tell us we’re trying to keep kids from getting access to and consuming cannabis, it seems to me that “space” would have to be defined as a reasonable proximity to the cannabis that might allow access by minors.
Since the Intents tell us we’re not trying to allow adults to contribute to the delinquency of a minor, it seems to me that a minor would have to be “present” in your “space” within reasonable distance that you could contribute to their delinquency.
So the notion that “space” is going to mean the soccer field next door to your patio seems a stretch, as does the notion presented by another anti Prop 19 site claiming it could be the same apartment building.
But could it mean the same room or same house? Probably the same room. Maybe the same house. So you might have to go to your bedroom or out on the patio to smoke your joint if you have kids. That slight inconvenience, which most non-Prop 215 pot smokers are already doing (guess what, most of us don’t like to smoke pot in front of kids, Dragonfly,) is why you would support keeping 80% of California’s cannabis consumers subject to a misdemeanor?
We also have to address the reality of policing. How exactly are the cops going to bust you if you’re sitting in your living room chiefing a joint in the presence of your kids? Remember, after Prop 19, the sight and smell of marijuana, cannabis plants, and paraphernalia are no longer probable cause for a search and investigation.
de la Luz continues by criticizing the California NAACP’s support of Prop 19:
What my article says, for those who have not read it, is that the NAACP’s belief that Prop. 19 will keep young black people from getting arrested over a joint is erroneous. Because the only people—of any ethnicity—who can get arrested over a joint are the ones selling it. And because Prop. 19 keeps personal distribution illegal, Prop. 19 will in no way keep anyone out of jail for selling a joint. (Nor will it keep anyone out of jail for having a joint, as decriminalization has already achieved this.)
This is word-parsing at its most disingenuous. What “decriminalization has already achieved” is actually making minor marijuana possession the only misdemeanor in California for which you cannot be arrested. To call it “decriminalization” is a bit of a misnomer, because you still get that misdemeanor conviction for a marijuana crime, so you are, in fact, treated as a criminal with a drug record for the rest of your life.
de la Luz is correct in that only sales of a joint get you arrested. But the way police use marijuana’s criminalization to harass minorities is well documented. For example, you don’t need to actually sell the joint to get busted for intent to sell the joint. You can be busted for intent to distribute if you are carrying two eighths in separate baggies. Just the sight or smell of your marijuana is probable cause for police to get you out of your car, pat you down, and bring K-9 units in to sniff around you and your car.
When marijuana is legal, these probable causes for police to use to harass minorities in the first place are gone. Will some people still be busted trying to sell joints in a park? Sure, but no more than are busted now and probably less of them since probable cause no longer exists.
Next up for de la Luz, the eeeevil corporations that might (*gasp*) make a profit after legalization!
But the fact that the people behind the initiative are businessmen with corporate aspirations speaks for itself. It is obvious that big business is written all over this initiative. Perhaps if Conrad had actually ever read my article, he would know that Jeff Wilcox, CEO of cannabis corporation AgraMed—which just received Oakland’s first commercial cultivation license—is on the steering committee for Prop. 19, and now expects to make $59 million annually through this corporatization of cannabis.
Somehow a businessman legally making money after marijuana is legalized for 100% of California adults is a nefarious aspiration for legalization. But the current businessmen legally making money off of running dispensaries that sell weed for $300/ounce to 20% of California’s pot smoking adults or medical recommendation referral services that sell you a doctor’s permission for $100 to buy that weed have the purest motives in fighting for the status quo that maintains the weed price, requires the weed recommendation, and defines 80% of pot smokers as criminals.
de la Luz then complains that even though the risk premium and middlemen associated with illegal sales would disappear and that the RAND Corp estimated prices might fall to $30/ounce, marijuana would still cost $300 an ounce.
To expect that licensed dispensary owners—who already know that the public will pay $300+ for an ounce, and who, in the case of Oakland’s four licensed dispensaries combined, currently enjoy gross sales of $28 million per year—will pass that “savings” on to the cannabis consumer is unrealistic at best.
OK, so because the price might not change, we should continue to treat 80% of California’s cannabis consumers as criminals?
Here we have to believe that when you can legally grow your own small garden and when all your friends can grow their own small garden, you’re still going to pay $300 per ounce. We have to believe that only Oakland will have legal sales to non-patients – no other city would legalize sales, or if they did, they’d have to adopt Oakland’s regulations. We have to believe that competition in a market legalized for 100% of consumers wouldn’t lead to lower prices, even as de la Luz promotes the fact that “a pound has already fallen to $2,000″ because of competition in “our current market” for the 20% of medical users.
Then de la Luz resurrects the corpse of Jack Herer to defame Prop 19:
Jack Herer practically died telling us to vote against it. He was explicitly and vehemently against Prop. 19. This is an undeniable fact.
This is the despicable rhetoric of a few who translate Jack’s idealism into a call to vote for the continued criminalization of cannabis. Since de la Luz says Jack “practically died” warning us about Prop 215, I believe she’s referring to Jack’s final speech at Hempstalk (I was there) where he said:
I don’t want to f**king give the United States government one f**king dollar of taxes. I think that they should go to f**king jail for getting you and me and 20 million people getting arrested for pot. It is the safest thing you can do in the universe. And that is what we are going to do in California. Okay? Come over to my booth, over there, and I will see you next time.”
Got that? United States Government. Jack is addressing the federal prohibition of marijuana and saying we shouldn’t reward the federal government with our tax money for arresting people for pot. Then he is saying “it” – smoking pot – is the safest thing you can do in the universe.
Now when he says “that” is what we are going to do in California, is he referring to “taxing”, thereby opposing Prop 19 as it gives “one fucking dollar of taxes” to the California (not United States) government? Or does “that” refer to “the safest thing in the universe” which Prop 19 would legalize? Or does “that” refer to something else Jack mentioned in his Hempstalk speech?
Let’s check out the rest of Jack’s speech for context:
“Some of these people know me from 1984, I came up here to Wa… Oregon… and Washington… we went [sic] an initiative over and over and over and over again. We bought a store, we put on the store over and over and over again and we put on the ballot and we brought 1980… 98, that we passed the initiative [Oregon Medical Marijuana Act], we went out and got the fucking signatures, and we passed the initiative.
“Now I’ll tell ya, we told that once a little bit of rain will fall, but it’s OK, because we got us our medicine. We… in the year before that [actually, two years] we got it as medicine in California in Dennis Peron and me went down there to get 750,000 signatures and we got it on the ballot for medicine. And we got it all over the fuckin’ state except with ‘rednecked’ areas like San Diego (heh heh heh). Fourteen years after we passed the law that’s still going on.
“I’m going to tell you there’s nothing fucking better for the human right [?] than having marijuana morning, noon, and night. (Cheers) You live two years longer than people that don’t smoke and don’t drink, and eight to twenty-four years later than people that do! You gotta be out of your mind not to smoke dope! (Cheers.)
“Once you know this, [unintelligible] two years longer if you smoke it, if you eat the seeds … of three million seeds… on foodstuffs on earth [best I can make out]… The number one thing for the whole world is hemp from one to a hundred before you get to soybeans. One to a hundred! The first, second, third, fiftieth, ninetieth, a hundred things of everything on earth! And the number one thing to a hundred is hempseed, and that’s against the law. We didn’t know it public school, high school, and college. I didn’t know that 98% of all food and clothing in the whole world was hemp! It is the best thing the world has ever had.
I don’t want to fucking give the United States government one fucking dollar of taxes. I thought that they should go to fucking jail for getting you and me and 20 million people getting arrested for pot. It is the safest thing you can do in the universe. And that is what we are going to do in California. Okay? Come over to my booth, over there, and I will see you next time.”
Graf #1 = We worked hard to get an initiative on the ballot and passed it
Graf #2 = We worked hard to get an initiative on the ballot and passed it, but it still gets ignored in ‘rednecked’ areas.
Graf #3 = Marijuana is really, really good for you.
Graf #4 = Marijuana is the best thing this planet’s ever had.
Graf #5 = Fuck the US Government for arresting us for smoking pot!
So since the entire speech is based on the premises of getting initiatives on the ballot to legalize medical use because marijuana is such a great thing…
And since Jack is belittling the ‘rednecked’ areas that don’t recognize medical legality…
And since Jack is denouncing the federal government for getting 20 million of us arrested for pot…
…it seems crystal clear to me that “that is what we are going to do in California” refers to getting an initiative on the ballot to legalize marijuana and passing it because marijuana is the best thing on the planet.
Please, Miss de la Luz, read the statement from the Herer Family, which asks:
Unfortunately, Jack passed away before Prop 19 made the 2010 ballot; so many people think he would still oppose it. We don’t believe that, and we ask that everyone stop saying he would cling to that position as we move toward the Nov. 2 vote.
As his family, we want the world to know that the last thing Jack Herer would want is for Californians to vote to keep Cannabis illegal. He was smart and had the political savvy to know that once a measure is on the ballot, the time for bickering has passed. That is why he campaigned for Prop 215 despite its shortcomings. That is why, were he able, he would now be telling voters to rally around and Vote Yes on Prop 19.
Miss de la Luz, you are welcome on my show anytime you like to discuss why you think I should remain a criminal. Just email me at stash ‘at’ norml.org and we’ll set up an interview time. I will be fair and respectful, but I will be as tough with you as I am with any prohibitionist who wants to keep my pot smoking a criminal act.