Legal Commentary

About Those Fears of Marijuana Mass Production

By Jeralyn

Reuters reports the marijuana growers in Humboldt County fear the Tax and Spend movement because if pot becomes legal, they may lose their position at the top of the illegal grow market as others move in, including tobacco companies.

At least one tobacco company, Reynolds American, says it has no intention of doing so. In other words, there are no plans for "Marlboro Green."

Are the fears justified? No. Just because California votes to legalize possession or cultivation for personal use, it doesn't follow that Congress will pass a law allowing unfettered cultivation. It hasn't even exempted medical marijuana patients from federal prosecution in states where their conduct is lawful. Regardless of what happens in California, the D.E.A. is going to ratchet up grower busts, particularly commercial ones, not look the other way. [More...]

First, the law today: Currently, in California, Health & Safety Code 11358 prohibits all acts associated with growing and manufacturing pot, including: handling of the seeds, cultivation in soil, and drying and processing harvested marijuana. It's a misdemeanor that carries a penalty from probation up to three years in jail. When people have more than a few plants, it can lead to a felony charge under Health and Safety Code 11359, possession of marijuana with the intent to sell.

For California medical marijuana users, SB 420 (Health & Safety Code 11362.7)protects patients from arrest provided they cultivate no more than 6 mature or 12 immature plants and possess no more than 8 ounces of dried marijuana (H&SC 11362.77(a)). Counties and cities can establish higher limits. Those that have are listed here.

CNBC this week had a lot of feature articles on marijuana and legalization. I stopped reading when I got to this glaring and obvious factual mistake. It discusses the Colorado arrest of Chris Barkowicz, a patient and caregiver found with more than the number of plants allowed by his patient and caregiver permits. (Background here.) Bartkowicz was arrested in February. The article says his case "resulted in a new policy, spelled out in a three-page memo by Deputy Attorney General David Ogden, stating that authorities shouldn't target people in compliance with state laws on medical marijuana." Except the policy was issued in October, four months before his arrest, so clearly his case didn't result in the policy. Bartkowicz has repeatedly said it was the policy change that led him to believe his conduct was lawful.

The bottom line is marijuana prohibition, like the war on drugs in general, has been an abject failure.

The time has come to amend criminal prohibition and replace it with a system of legalization, taxation, regulation, and education.

....Legalizing and regulating adult marijuana use would raise revenue, promote public safety and limit the access that young people have to marijuana. These are goals that lawmakers and the public ought to support.

The Feds need to get out of the marijuana busting business and leave it to the states to regulate. But Congress moves in itty, bitty increments when it comes to reform, and it's not going to start with a law universally allowing marijuana use and cultivation. What is possible, and long overdue, is a law disallowing prosecution of marijuana users and providers who are in compliance with state law -- or at least at a law that expressly allows users and providers to raise compliance with state law as an affirmative defense to prosecution.

The market will sort itself out, local regulation will bring benefits to state coffers while keeping the tobacco companies and the Monsantos at bay. The Humboldt County growers have little to fear, probably for at least a generation. And the best place for information is not MSM outlets like CNBC but those who have been studying and reporting for years, like NORML and the Marijuana Policy Project.

Bottom line: Support Tax Cannabis and help get the California Initiative passed. If you'd like to read the actual initiative that will be on the ballot, I've uploaded it here.

Full post as published by TalkLeft on April 22, 2010 (boomark / email).