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L.a. Times: "a Federal-State Law Inconsistency Shouldn't Stop Californians From Legalizing Marijuana"

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A federal-state law inconsistency shouldn't stop Californians from

legalizing marijuana


No law is infallible. As it has done in the past, California can show

leadership in driving needed reforms by passing Proposition 19.


Hanna Liebman Dershowitz

July 28, 2010



The law is the law. If we unquestioningly accepted that maxim, imagine where

we would be today. Jim Crow would be alive and well, rivers and skies would

be polluted, and women wouldn't be allowed to vote.


Yet such is the mindset of many of those who criticize Proposition 19, the

marijuana regulation and taxation initiative on the November ballot. In his

July 18 Times Op-Ed article, UCLA public policy professor Mark A.R. Kleiman

declares that state legalization "can't be done." He points out, correctly,

that if the initiative is successful, the federal marijuana prohibition laws

will remain in place. What he assumes, incorrectly, is that federal agents

will swarm into California, busting farmers and arresting distributors and

shopkeepers, to say nothing of the garden stores that sell them equipment

and supplies, the accountants who do their books and the municipal tax

officials who delight in assessing and collecting the new tax revenues.


Kleiman might well have uttered, "The law is the law."


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But the law is neither absolute nor infallible, and that's why Californians

can ‹ and should ‹ legalize, regulate and tax marijuana-related commerce.


The federal-state dynamic concerning marijuana is not complicated. Under our

system of federalism, both the states and the feds may prohibit commerce in

marijuana, but neither is required to do so. Similarly, during alcohol

prohibition (1920-33), commerce in alcoholic beverages was prohibited not

only by federal law (the Volstead Act) but by the laws of most states. In

1923, New York repealed its state prohibition laws, leaving enforcement, for

the remaining 10 years, entirely to the feds. California voters

overwhelmingly did the same thing in 1932, one year before national

prohibition was repealed.


Let's think this through. If Proposition 19 passes, two important balls roll

into the feds' court. The first is that the sole responsibility and expense

of enforcing marijuana prohibition will be shifted to them. After Nov. 2,

marijuana "offenders" could be arrested only by federal agents, prosecuted

only under federal law, and sentenced only to federal detention.


If the feds undertook this, cases involving simple possession cases and

small-time marijuana businesspeople, usually relegated to state courts,

would flood federal courthouses. But even with a drastic increase in funding

for federal enforcement, such activity would barely put a dent in

California's marijuana trade, and would fail to stifle California's policy

change, as the federal government has failed to do since the first medical

marijuana laws were passed 14 years ago. Moreover, justifying the invasion

into a state's province to undermine the will of the voters at such great

expense to taxpayers would be highly questionable, especially in the current

economic climate, not to mention a political climate that is at best

lukewarm on prohibitionist policies.


The second ball is even more significant. Voter approval of Proposition 19

would shift to the feds the responsibility and burden of justifying

marijuana prohibition in the first place. Now, the Washingtonians who have

never questioned decades of anti-pot propaganda can explain to the people of

California why we cannot be trusted to determine our state's marijuana

policies. Let them endorse the prohibition laws' usefulness as a tool of

oppressing minorities. Let them celebrate how minor marijuana violations

cost people their jobs, their housing, custody of their kids, and entrap

them permanently in vast criminal justice databases. Let them justify the

utter hypocrisy of the legal treatment of alcohol and tobacco, as compared

with the illegal treatment of marijuana. Let them tell us how many more

people will have to be prosecuted and punished before marijuana is

eradicated, how much that will cost, and where the money will come from.


Proposition 19's success in November would put the feds in a quandary, yes,

but it is a quandary of their own making. Unlike alcohol prohibition, which

required a constitutional amendment, Congress could fix this easily with a

simple amendment to the Controlled Substances Act allowing conduct legal

under state law and respecting the right of states to regulate and tax the

cannabis industry. After all, determining what is a crime is traditionally

handled at the state level; indeed, federal prosecutions of drug possession

make up a miniscule portion of overall drug arrests.


Instead of hewing to a misguided and unworkable federal hegemony in this

area, encouraging innovation at the state level would be a more rational

federal policy. And to be clear, legal scholars have long disagreed with

Kleiman's conclusion that the feds must and will intervene to try to quell

state action in this area.


States need not shrink from countering federal policy on marijuana.

California can show leadership in driving needed reforms, as it has before.

In other words, the law need not be the law if you're willing to stick your

neck out. Cautious academics and politicized public employees will always

embrace the status quo, joined by risk-averse politicians who misconstrue a

lack of constituent "noise" on this issue as satisfaction with current law,

not fear. But voters know better.


Not only can Californians regulate and tax marijuana, we should.


Hanna Liebman Dershowitz, an attorney in Los Angeles, is a member of the

Proposition 19 legal subcommittee.

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