According to the Associated Press, U.S. Attorney General Eric Holder sent a letter earlier this week to former heads of the Drug Enforcement Administration in which he promised that the Justice Department would continue to enforce federal marijuana laws in California even if the state’s voters approve Proposition 19, which would make marijuana legal for all adults 21 and older and allow localities to tax and regulate marijuana’s sale. In response, Steve Fox, director of government relations for the Marijuana Policy Project, offered the following statement:

“The truth is that the use of marijuana -- a substance far less harmful than alcohol or tobacco -- is widespread in this country and nothing the government can do will ever stop that. The only question is how we structure the market for marijuana so that it is best for society. Will we have marijuana sold in licensed, tax-paying and regulated stores or will we continue to have it sold in a completely unregulated market that makes it more available to teens? Will we impose standards so that purchasers know the quality and purity of the marijuana they are buying or will we keep it in a far less safe unregulated market? Will we have the profits from the sale of marijuana go to legitimate taxpaying American business owners or will they go to underground dealers and cartels who will pay no taxes and defend their interests through violence?

“Attorney General Holder is not looking out for the health and safety of the American people. He is nothing more than the lead advocate for a never-ending taxpayer-funded jobs program for law enforcement officials in this country. If you look at the opposition to marijuana policy reform in this country, it is driven almost entirely by people whose jobs are dependent on arresting and prosecuting individuals for marijuana-related offenses. The only other prominent group is elected officials who ignorantly turn a blind eye to alcohol-fueled violence in our communities in order to pretend they are 'tough on crime' by going after marijuana users who simply want to enjoy a substance less harmful than alcohol in peace.

“If Attorney General Holder and the former heads of the DEA truly and sincerely cared about keeping our society safe from more dangerous drugs like cocaine, they would break the link between marijuana and harder drugs. Keeping marijuana in the illegal market does not reduce the use of harder drugs; it increases it by forcing teens and adults to purchase marijuana in the same 'stores' that sell those other drugs. This cannot be stated strongly enough: Supporters of marijuana prohibition in law enforcement, who know that alcohol use causes far more problems than marijuana use, are not motivated by concerns for public safety. They are motivated by a dangerous combination of arrogance, prejudice and self-interest. Law enforcement has lost all credibility on the subject of marijuana prohibition and it is time the American people start thinking for themselves on this issue.

“States are the laboratories of our democracy. California voters have an opportunity this November to choose an alternative to the failed policies of marijuana prohibition. Sadly, Attorney General Holder is trying to deny them that chance before the election even takes place.”

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If you believe most headline writers, yesterday the RAND Corporation released a study that said ending marijuana prohibition in California would do little to take away profits from Mexican drug cartels. But if you take the time to actually read the study, you’ll learn that Mexican cartels make billions of dollars from exporting marijuana to the United States (not including profits from the marijuana they grow within our borders), that a statistic originally put forward by the U.S. drug czar’s office was based on little and “should not be taken seriously,” and that removing marijuana from the criminal market in California (just one state) would deprive the cartels several percentage points worth of their revenue.

In short, the report tells us what we already knew: the cartels make huge profits from illicit marijuana sales, the U.S. drug czar’s office is prone to spreading misinformation, and the passage of Prop 19 in California could be a first crucial step toward dealing a much larger blow to the cartels’ revenue.

Let’s address these points one at a time:

How much money do the cartels make from marijuana? RAND estimates the cartels make somewhere around $1.5 to $2 billion annually “from moving marijuana across the border into the United States and selling it to wholesalers.” But this estimate makes a serious omission: How much money are the cartels making from all the marijuana they grow within U.S. borders? “This [$2 billion] figure does not include revenue from [cartel] production and distribution in the United States,” the report says, “which is extremely difficult to estimate with current data.” That’s a huge lapse, especially considering that every year, the Campaign Against Marijuana Planting digs up literally millions of marijuana plants that authorities blame on illegal cartel growers. In order for RAND’s estimate to have any meaning, marijuana grown by the cartels in the U.S. needs to be taken into account.

What percentage of the cartels’ revenue comes from marijuana? It’s been widely stated by legalization opponents and advocates (including myself) that the cartels make 60 percent of their revenue from selling marijuana in the U.S. Our source for that statistic was none other than the White House Office of National Drug Control Policy. But now RAND says that number isn’t true:

The ubiquitous claim that 60 percent of Mexican [drug trafficking organizations’] export revenue come from U.S. marijuana consumption should not be taken seriously. No publicly available source verifies or explains this figure and subsequent analyses revealed great uncertainty about the estimate (GAO, 2007). Our analysis— though preliminary on this point—suggests that 15–26 percent is a more credible range of the share of drug export revenues attributable to [marijuana].

I have no way of confirming which of those estimates is closer to the truth. But either way, says NORML’s Paul Armentano, “someone is lying.”

So who should we believe? On the one hand we have the federal government, which consistently lies about marijuana to further their own agenda. On the other hand, we have RAND, which also isn’t above making its own specious claims to further their own agenda — which in this case seems to be opposing California’s Prop. 19.

And more importantly: so what? If the cartels make 15 to 26 percent of their revenue from marijuana, that is still a hugely significant sum, and it shouldn’t discredit the argument that legalizing marijuana would hurt the cartels (an argument made not just by advocates in the U.S., but also former Mexican president Vicente Fox and many others). According to RAND, it could deprive them up to a quarter of their profits.

Pete Guither does a nice job summing up the headache this causes:

The government comes out and says that 60% of the cartels’ income is from marijuana. Legalizers say that legalizing will hurt the cartels (true) and mention the government’s numbers. Rand comes out and says that the government was lying through its teeth, but they don’t really know for sure what the real numbers are, but probably lower, and therefore the legalizers’ argument for legalization is supposedly weakened. And yet they admit that the legalizers’ core argument is true (that legalization will hurt the cartels – see above). Then they word their press release in such a way that they know the newspapers will report it as a blow to Prop 19.

So how much of an impact could Prop 19 have on the cartels? RAND estimates that Prop 19’s passage could decrease cartel revenue by 2 to 4 percent. For a single state initiative, those numbers aren’t small potatoes.

We believe that legalizing marijuana in California would effectively eliminate Mexican DTOs’ revenues from supplying Mexican-grown marijuana to the California market. As we elaborate in this chapter, even with taxes, legally produced marijuana would likely cost no more than would illegal marijuana from Mexico and would cost less than half as much per unit of THC (Kilmer, Caulkins, Pacula, et al., 2010). Thus, the needs of the California market would be supplied by the new legal industry. While, in theory, some DTO employees might choose to work in the legal marijuana industry, they would not be able to generate unusual profits, nor be able to draw on talents that are particular to a criminal organization.

But somehow RAND portrays this negatively. Of course, legalizing marijuana in a single state wouldn’t completely wipe out the cartels. But what MPP and others advocate is that marijuana be taxed and regulated like alcohol nationwide. Passing Prop 19 would simply be the first step toward doing that. Jon Walker from Just Say Now gets it right:

No one has been claiming just the passage Prop 19 alone would eliminate all of the Mexican drug cartels’ marijuana profits across the whole country. Prop 19 is just the first big step toward a broader adoption of a more sensible marijuana policy that denies the cartels a huge source of funding.

And of course, until Prop 19 or some similar initiative is passed in an American state, this entire debate will remain abstract and hypothetical. It’s up to California voters to make it a reality on Nov. 2.

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There’s been a great deal of chatter recently about what the federal government can or will do if Californians wisely pass Proposition 19 in a few weeks (read up here and here for example). President Obama has several choices, but the one I want address here is the one recently urged by nine former DEA heads (pdf):  for the feds to sue California in an attempt to declare the law null and void under the Supremacy Clause of the Constitution because it violates the Controlled Substances Act (CSA). I have yet to see a more than perfunctory analysis of such a scenario, so I thought I’d post a little introductory Constitutional Law lesson for our curious readers.

Article VI, Section 1, clause 2 of the Constitution says “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land; … Laws of any State to the Contrary notwithstanding.” In short, if state law conflicts with a constitutionally valid federal law, the state law is void. Now for starters, not even Supreme Court justices will agree on what the CSA can constitutionally prohibit. At least one justice will tell you a law prohibiting the intrastate cultivation and consumption of marijuana (at least for medical use) isn’t constitutional in the first place. But since a majority on the Court has already said Congress has authority to regulate even intrastate marijuana cultivation, does that mean Prop 19 would be void? Hardly.

The legal term for this analysis is “preemption” – does federal law preempt state law? There are two ways this can happen, express or implied. Express preemption is when federal law expressly says that it preempts state law (example) – the CSA does not. The second is implied preemption, and there are multiple versions of implied preemption. First is when federal laws and regulations are so comprehensive that they intend to “occupy the field” and leave no room for the states to regulate. The second is when there is a direct conflict between state and federal law, so that one law forbids something the other requires, or visa versa. Fortunately, section 903 of the CSA speaks directly to this question:

No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.

As you can see, the CSA itself says explicitly that it doesn’t “occupy the field.” That’s why in addition to federal laws on marijuana possession, every state in the country has its own laws, most of which differ from one another and federal law. So the question is whether there’s a “positive conflict” between federal law and Prop 19 -- does the proposition require something that the CSA forbids? Late night punchlines notwithstanding, smoking marijuana will not be mandatory in California if Prop 19 passes. And Prop 19 doesn’t forbid anything the CSA requires.

There’s one final wrinkle though. A state law can conflict with federal law if it creates an obstacle to accomplishing the goals behind federal law. There’s some question as to whether this form of preemption even applies since one could argue the language of section 903 limits the analysis to direct, positive conflicts (and at least one court agrees with this interpretation). But let’s assume for argument’s sake that it does apply. Some will argue that a state making marijuana legal under its own laws frustrates Congress’ intent to control (by prohibiting) marijuana possession and use. Does that mean California has to keep marijuana illegal? No. A separate line of cases says the feds cannot “commandeer” state governments by telling them what they can and cannot do. In other words, the federal government cannot force California to keep marijuana illegal under state law or enforce federal law.

So what does all this mean? Without question, California can simply remove its criminal laws concerning the possession, cultivation, and use of marijuana, which Prop 19 would do. Then, cities and the state would be free to decide whether to tax and regulate marijuana distribution. Whether and how states or municipalities can enact regulations concerning sales and use of marijuana is another question, but the court decisions on similar issues are encouraging. Decisions in two California cases have found that federal law doesn’t prevent cities and counties from licensing medical marijuana dispensaries and that federal law doesn’t preempt the issuance of patients’ and caregivers’ ID cards. But suffice it to say, anyone claiming Prop 19 will just be void anyway because it conflicts with federal law is, at best, grossly oversimplifying matters. More likely, they’re just flat out wrong, and running scared now that it’s becoming clear what a failure marijuana prohibition has been.

The bottom line is this: California voters have a very real opportunity on November 2 to finally start unwinding marijuana prohibition, and nothing in the Constitution says otherwise.

(Thanks to Karen O'Keefe, MPP's director of state policies, for her assistance.)

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Ever since California Gov. Arnold Schwarzenegger signed a bill decriminalizing possession of up to one ounce of marijuana in the Golden State, opponents of Prop 19 have latched onto this development as their latest (bogus) talking point for why voters should reject the ballot measure on Nov. 2.

Their argument goes something like this: By making possession a civil infraction rather than a misdemeanor, people will no longer be arrested for marijuana possession in California; therefore, one of the main arguments in support of Prop 19 (that it’s wasteful and wrong to arrest adults for using something that’s safer than alcohol) is now moot. “This takes away the last reason why anyone would support Proposition 19,” writes Orange County sheriff Sandra Hutchens and former state Sen. Dick Ackerman in yesterday’s Orange County Register, to cite just one example.

Here’s what the “decriminalization is good enough” argument gets wrong:

• Police priorities: SB 1449, the decriminalization bill Schwarzenegger signed, doesn’t change the penalty for possessing marijuana (it already was and remains a $100 fine). It simply reclassifies possession as a civil infraction, rather than a misdemeanor that might require a court appearance. In no way does this mean that police will decide to stop wasting their time tracking down low-level marijuana offenders. Instead of 60,000+ marijuana arrests each year, California would simply have 60,000+ marijuana citations. Prop 19 would eliminate the need for either, and compel police to focus on true threats to public safety.
• Racial disparities: As Hanna Liebman Dershowitz points out in another O.C. Register op-ed countering Hutchens and Ackerman, as long as law enforcement can cite and harass people for possessing marijuana, “the shameless pattern of racially disproportionate enforcement that has been a hallmark of marijuana prohibition” will continue: “[P]olice could still target communities of color and may even be motivated to issue more citations than in the past, since they won't cost as much under SB 1449. Prop. 19, by contrast, will end futile practices of subjecting otherwise law-abiding consumers to detention, citation and collection of personal data, while wasting law enforcement effort and cost; SB 1449, by contrast, preserves these practices.”
• Still sold by criminals: Decriminalization takes a step in the right direction by removing criminal penalties for the average marijuana user, but it does nothing to authorize the sale of marijuana and remove it from the hands of criminals and drug cartels (as Prop 19 would). A report issued last week by the International Centre for Science in Drug Policy was emphatic on this point: “Without regulatory controls allowing for limited distribution – as employed for other psychoactive substances such as alcohol and tobacco – organized crime groups continue to exercise control over the cannabis market,” the report states.
• No tax revenue: On that same note, as long as the sale of marijuana remains outside the rule of law, California and its many localities will be unable to tax that sale and make any revenue from what’s been widely estimated to be the state’s largest cash crop. Decriminalization would contribute little toward collecting the $1.4 billion California’s Board of Equalization estimated the state could make by ending marijuana prohibition.
• No regulation: Finally, with marijuana decriminalized, and its sale illegal, local governments will be unable to establish regulations dictating how and where marijuana can be sold, who can sell it, and to whom. Under decriminalization, as well as prohibition, there is no system to license or zone vendors, or to require them to check customer IDs. Nor are there any regulations that apply to the product itself. Until marijuana is sold in a legal, regulated market (as it would be under Prop 19), it will still be controlled by drug dealers who offer no quality control, have no legal means to resolve disputes, and have no qualms about selling to people under 21.

The only way to eliminate these harms once and for all is to completely remove marijuana from the criminal justice system and bring its sale under the rule of law – just as Proposition 19 would do in California.

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This weekend, Mario Vargas Llosa, winner of this year’s Nobel Prize for Literature, joined a growing number of Latin American leaders, academics, and artists in calling for an end to failed prohibition policies:

“[Legalization] is the only solution," said the author. "Drug trafficking can not be defeated by military means.”

It seems strange that such well-respected members of Latin American society are more and more willing to come out in favor of reform, while here in the States, most public officials will not come within a mile of advocating sensible policies. The research supporting these changes is available, and new studies suggesting the same are coming out all the time.

Could it be that this is because our policies cause much more bloodshed abroad than at home, despite America being the largest marijuana market on Earth?

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There are just 21 days left until California voters decide whether their state becomes the first in the nation to make marijuana legal for all adults. And as the campaign enters its final stretch, support for ending marijuana prohibition in California continues to pour in from all kinds of sources.

Late last week, the League of United Latin American Citizens of California (LULAC) – part of the nation’s oldest Latino civil rights group – became the latest statewide organization to endorse Prop 19. "The current prohibition laws are not working for Latinos, nor for society as a whole," said Argentina Dávila-Luévano, California LULAC State Director, in a statement. "Far too many of our brothers and sisters are getting caught in the cross-fire of gang wars here in California and the cartel wars south of our border.  It's time to end prohibition, put violent, organized criminals out of business and bring marijuana under the control of the law."

LULAC’s endorsement came on the heels of major financial contributions to the Yes on 19 effort from Napster co-founder Sean Parker ($100,000), Facebook co-founder Dustin Moskovitz ($70,000), and David Bronner, the president of Dr. Bronner’s Magic Soap Company ($75,000). Though the Prop 19 campaign has not yet received the multimillion-dollar funds required to launch a full-scale TV ad campaign, these donations will be a tremendous boost to get-out-the-vote efforts among California’s electorate.

To assist in that effort, MPP is directing our supporters to an online tool set up by the Just Say Now campaign that enables users to reach out to likely supporters of marijuana initiatives in California, Oregon, Arizona, and South Dakota. If you have any free time, this is a great opportunity to contribute to the cause.

For a more detailed look at the battle lines being drawn over Prop 19 in California, check out some of Phil Smith’s reporting over at the Drug War Chronicle.

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“The Colbert Report” dedicated about a third of last night’s episode to a lively discussion about Prop 19 in California – and it was chalk full of gems. After rallying his audibly excited audience with an overview of where the measure stands (“If Prop 19 were a human, it would be the most popular candidate in California”), host Stephen Colbert turned to two guests – Joseph Califano, of the Center on Addiction and Substance Abuse, and former New Mexico Governor Gary Johnson – to argue for and against making marijuana legal.

Califano opposes Prop 19. The entire debate over marijuana, he said, comes down to children:

“We have two legal drugs in America – alcohol and tobacco – and we’ve had no success keeping them out of the hands of kids. So if you legalize pot in California, all the kids will have access to it.”

Yeah, I know. My head hurt when I heard this, too. It’s amazing how twisted, bankrupt, and dishonest a statement that is. First off, Califano conveniently ignores the fact that young people already have access to marijuana – better access than they do to alcohol and tobacco, because marijuana dealers aren’t required to check IDs. (On the same day this segment aired, a report from the International Centre for Science and Drug Policy said that despite decades of increased arrests, seizures, and enforcement efforts, marijuana remains “universally available” to young people.) Secondly, there has been a great deal of progress in recent years in lowering the use rates for alcohol, and especially tobacco, among young people. That success has come about through sensible regulations and fact-based education campaigns – not the criminalization of tobacco users.

If Califano truly believes we need to “change the culture” surrounding marijuana the same way society changed the culture surrounding tobacco, he should embrace the regulation of marijuana, accompanied by science-based education. But doing so could negatively affect the bottom line for the substance abuse centers Califano represents – and who depend on court-ordered entries for arrested marijuana users for a great deal of their business.

Luckily, Gary Johnson was there to inject some honesty into the conversation.

“I just think that there should be truth in this. I don’t drink alcohol, I don’t smoke pot, but I’ve drank alcohol and I’ve smoked pot, and I can tell you there’s a big difference between the two, and that is that marijuana is a lot safer than alcohol. I think you can introduce truth into the equation; we can tell our kids the truth regarding this. When it comes to the truth and my kids, I love them. I’d rather see them smoke marijuana than alcohol – but I don’t want them caught. I don’t want them subject to the criminal justice system when it comes to marijuana.”

Bravo, governor. It takes courage to say something like that, and by doing so on national television, Gary Johnson is making it easier for other public figures to follow suit.

How’s that for changing the culture?

Watch the entire segment below:

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New Jersey’s Department of Health and Senior Services yesterday released long-awaited regulations for the medical marijuana program first approved by its state legislature in January. They are among the most stringent medical marijuana guidelines in the nation.

To qualify, patients must have one of nine conditions, and their doctor must treat them for at least one year (or have seen them four times) and show that other treatments have been ineffective. Patients can apply for the program starting next month, but none are expected to receive their medicine until at least summer 2011.

The law originally called for six nonprofit dispensaries to grow and sell marijuana to patients, but these latest rules scale that back to two growers for the entire state – who will supply only four nonprofit dispensaries statewide. (By comparison, Washington, D.C.’s medical marijuana regulations, which are also quite narrow, propose up to five dispensaries for the entire District). And, in what is perhaps the first requirement of its kind in the nation, New Jersey will limit the potency of all medical marijuana to just 10 percent THC.

"Overall, it seems the goal of the regulations is to provide the least amount of relief to the fewest number of patients,’’ DPA’s Roseanne Scotti told local news outlets. "This wasn’t what was foreseen by advocates. We already had the strictest law in the country; I didn’t think it could get any worse."

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Earlier this summer, a Phoenix marijuana deal went bad and resulted in the deaths of three people. Now, details have been released about the investigation that led up to the massacre. After being connected with a group of buyers through a confidential informant, police planned to sell 500 lbs. of marijuana (seized in previous investigations) for $250,000. During the deal, something went wrong and shooting started.

Many words come to mind when considering this horrible event, which ended with a detective dead and two more wounded, as well as the deaths of two suspects. Tragic. Wasteful. Heroic. For me, one word stands above the rest: avoidable.

The simple fact is that this sort of thing doesn’t happen in regulated industries. When was the last time you heard about a liquor store owner gunning down the delivery driver to avoid paying the bill? As seen during alcohol prohibition – most notably in Chicago during the reign of Al Capone – illegal markets that have no legal means to resolve disputes inevitably produce violence. Once the product is brought into a regulated market, the violence disappears almost overnight.

In a society that taxes and regulates marijuana like alcohol, few of our law enforcement officers will end up murdered over a couple of bales of plant matter.

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