Mothers who support Proposition 19 held a press conference in California yesterday to make the case for regulating marijuana and removing it from an illicit market that makes it readily available to young people. (Video below)

“When I think of what kind of world I’d like my children to grow up in, [I’d like] that they grow up in a world with marijuana being legal and controlled, and not this out of control system that we have today,” said Hannah Liebman Dershowitz, an attorney and mother of two kids, aged 7 and 5. “It may be counter-intuitive, but legalizing marijuana would be safer for our children.”

On a related note, the Women’s Marijuana Movement has teamed up with the Just Say Now campaign to create an online phone-banking tool that allows marijuana-reform-minded women across the country to make phone calls to female voters in California. If you’re a woman who supports Prop 19 and has a few minutes to spare, this is a great way to help make a difference.

And speaking of lawyers, last week more than 65 professors from the nation’s top law schools joined the growing number of groups speaking out in favor of Prop 19.

Last night on the O’Reilly Factor, host Bill O’Reilly bet guest John Stossel $10,000 (to a charity of the winner’s choice) that Proposition 19, the California ballot measure that would make marijuana legal for all adults, will fail. Stossel, who supports Prop 19, said that it’s time to end marijuana prohibition because “it’s a war on our own people.”

“A war on our own people?” asked a bewildered and defiant O’Reilly. “What does that mean? They’re breaking people’s doors down?”

Yes, Mr. O’Reilly, that’s exactly what it means. Below is video of a Feb. 11 raid in Columbia, Missouri, in which a SWAT team broke down a family’s front door, terrorized a 7-year-old child, and shot and killed one of the family’s dogs. The reason for such tactics? The officers found a pipe and a small amount of marijuana.

More than 800,000 Americans – nearly one every 37 seconds – are arrested every year for possessing marijuana, something that's safer than alcohol. It is a war on our own people, Mr. O’Reilly.

In another poor and puzzling attempt to defend our failed status quo, O’Reilly tried to compare marijuana to tobacco, by saying “marijuana is exactly as addictive as tobacco.”

Once again, he’s wrong. From TIME magazine yesterday: “Estimates vary, but compared with tobacco, which hooks about 20% to 30% of smokers, marijuana is much less addictive, coming in at 9% to 10%.” According a 1999 report from the federal government’s Institute of Medicine, “Compared to most other drugs … dependence among marijuana users is relatively rare … [A]lthough few marijuana users develop dependence, some do. But they appear to be less likely to do so than users of other drugs (including alcohol and tobacco), and marijuana dependence appears to be less severe than dependence on other drugs.”

More importantly, tobacco is responsible for killing more than 400,000 Americans every year, according to the U.S. Centers for Disease Control and Prevention. Marijuana kills no one. But tobacco is legal – and few families have their doors broken down, children terrorized, and pets murdered because a parent is in possession of a cigarette.

And according to the most recent poll, it looks very likely that Mr. O’Reilly could soon be out $10,000. SurveyUSA shows Prop 19 leading among California voters 48 to 44.

About one-third of “unlikely” voters in Oregon said they were more enthusiastic and more likely to vote after learning that a medical marijuana initiative was on their state’s ballot this year, according to a new survey released today by the measure’s campaign. Measure 74 – which has been endorsed by the Oregon state Democratic Party – would add state-licensed dispensaries to Oregon’s existing medical marijuana law.

According to the survey, which polled a random sampling of under-40, Democratic and independent voters, 31% of respondents said they were more likely to vote after hearing that Measure 74 was on the ballot, while only 18% were more enthusiastic after hearing about the contest between their state’s candidates for governor.

These findings add further merit to the argument many have made in the run-up to Nov. 2 – that marijuana initiatives could be the key to increasing youth voter turnout in this and future elections. Once mainstream political candidates acknowledge that there is a large and growing constituency of voters who want to see our marijuana laws change, it will hopefully be just a matter of time until they begin to embrace marijuana reform as a major issue that’s in their own best interests to endorse.

As Jon Walker points out, in Oregon’s 1998 election, more total votes were cast for Measure 67, the medical marijuana initiative, than for any other statewide candidate or ballot measure.

Former U.S. Surgeon General -- and MPP VIP Advisory Board member -- Joycelyn Elders appeared on CNN yesterday to argue against the criminalization of marijuana users. "Marijuana has never caused anybody directly to die," she said. "It's not a toxic substance ... We can use our resources so much better. I think we need to legalize marijuana for adults, and tax it so we can use the money for much better things."

Elders is just one of the countless other esteemed medical, legal, civil rights, law enforcement, labor, and economic leaders and organizations who have endorsed Proposition 19 in California, the measure to make marijuana legal for all adults.

Only 15 days left until Election Day!

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.”

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.

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.)

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.

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?