Paul Armentano: Proposition 19 and the Medical Patient
By Mark Pedersen (California)
Paul Armentano is the Deputy Director of the National Organization for the Reform of Marijuana Laws (NORML). He currently resides in Northern California.
Paul: I have been involved in marijuana law reform for the better part of twenty years. This issue was important to me at a very young age because I always felt... Before I ever really understood this issue in depth, I just had a core belief that in a free country , or at least in a country that proposes to be a free country, it is arbitrary or inappropriate for the state to decide which substances that one can put in their body in the privacy of one's own home.
Here we have a case where government has drawn this arbitrary line where they've said, "These are OK . These are not OK. And in fact, these substances are so not OK in our opinion that we will bring the full force and power of the state to target you, to prosecute you, and to incarcerate you for what you put in your own body."
In the case of marijuana, this is so egregious because we know that whether a person is using marijuana recreationally, they are using a substance that is definitely safer than alcohol. Or if a person is using marijuana therapeutically, we know that we're talking about stigmatizing or targeting somebody who's using a substance that is less toxic, has no risk of overdose, and has less adverse affect on behavior than virtually all conventional medications.
Paul: It's really a criminal act, this failed public policy. We all have an obligation when we're aware of such injustice to speak out against it and do what we can do to try to change it.
Mark: How do you feel about Proposition 19?
Paul: Well, full disclosure, I am a Co-Chair of one of the steering committees for Prop. 19, so I'm certainly more than an objective outsider.
I think that Prop. 19 has a real legitimate chance.
Paul: I think it is hard to win initiatives in midterm elections, and of course, Prop. 19 will go to vote in a midterm election. Prop. 19 will go to the vote in a midterm election where there is certain voter sentiment that, I believe, punishes much of the establishment and brings out potentially a more socially conservative voter. That's going to make it difficult for Prop. 19.
The great thing about marijuana law reform is that it appeals across all party lines and all social dynamics. When you see the Coalitions that are supporting Prop. 19 now, whether its California NAACP, or the California Council of Churches which represents 1.5 million members in California, or whether we're talking about SEIU, the largest union in California, 750,000 members, or the ACLU. We're talking about divergent organizations. We could be talking about Firedoglake, FDL, who has come out in support of Prop. 19.
You couldn't get these groups to agree politically on much of anything , but they all believe that it's time to legalize marijuana for adults in California.
There have been other successful marijuana law reforms that have passed via state initiative, but we have never seen this sort of broad based campaign like we have seen Prop. 19. Any campaign that can unite on the same page the SEIU, representing 750,000 households in California, or the California NAACP, or the California Council of Churches representing 1.5 million members or Firedoglake - all of these groups have come out and said, "We endorse Prop. 19 and we're going to use our resources to encourage our constituency; our membership base to also support Proposition 19."
That is why we're seeing the support in the polls; that's why we're seeing the lack of organized opposition, and that is why ultimately, whether or not this passes in November, we have built the base to ultimately lead for success in either 2012 or a following election.
There has never been the kind of coalition building that we're seeing today. And that is going to benefit this issue long after November 2nd. So I am thrilled to be a part of this campaign. I think it's historic, and I think we have the opportunity to change the entire debate, not just in California, but nationally on November 2nd. If enough people vote yes on Prop. 19 and say once and for all that the adult use of marijuana, in the privacy of one's own home is legal, lawful behavior, that is going to send ramifications, not just in this country but around the world.
There are governments across the globe that have said that if California legalizes marijuana on November 2nd, "We are going to consider legalizing in our country."
That's what's at stake with Prop. 19 and I think we have a unique opportunity this year to make it happen.
Mark: OK. Tell me, though...about the issues that seem to be causing some division within the cannabis community.
Mark: I have not had the opportunity to really look at it the way I would like to be able to. All I hear is the rhetoric on one side or on the other side. I hear discussions like that Proposition 19 is going to hurt the medical cannabis movement and you know, that is an important issue for me.
Paul: Sure. Of course.
Mark: They say that it's going to turn back time in regard to Prop. 215.
Mark: I hear something in regard to growth space.
Paul: Yes. Yes.
Mark: Twenty-five square feet, which is a pretty small area. That's five by five. And the thought of somebody growing in that space recreationally is one thing, but patients?
Most of the patients that I have interviewed consume between a quarter and a half an ounce per week. That's, you know, two ounces per month. It's just cost prohibitive for most people on a very limited income, right out of the gate.
People who are, perhaps, on Disability... Maybe they only have an income of $900 a month and the aspect of having to spend upwards of $800 - at the current pricing regarding cannabis...which includes California - even though it's legal medically, the price of cannabis has not fallen.
Paul: Sure. Right.
Mark: ...which is a major concern for most people who are medical patients.
Paul: So, let's talk about that. You bring up some concerns that many in the cannabis community share. I want to address those as carefully as I can.
Proposition 19 takes currently illicit behavior and it makes some of those behaviors legal and it leaves other behaviors...they remain illegal.
The medical use of marijuana in California; the use of marijuana under a doctor's recommendation, as you know, is legal behavior. Thus, this behavior is unaltered by Prop. 19 because Prop 19 is specific to addressing currently illicit behavior. With that respect, Proposition 19 is impacting non-medical users of marijuana which under the law right now in California are not allowed to grow a single marijuana plant. It's a felony in California.
If they possess up to an ounce of marijuana, in the privacy of their own home, that is a criminal misdemeanor. That means that they have to make an appearance in court, they will pay a fine, and they will have a criminal record for two years, unless they go into an alternative divergent treatment program.
So that's the state of the law for non-medical users.
Medical users, of course, in California have a whole litany of protection under Proposition 215 and under Senate Bill 420. Those protections include possession of marijuana and growing marijuana at limits that are much greater, as you pointed out, than the limits that would be set under Prop. 19. However, the limits set under Prop. 19 would be only for non-medical users. The intent of Prop. 19 is not to in any way infringe on the existing protections that medical users have right now. The focus of this law is to take these illicit behaviors that right now affect non-medical people and allows for some of those behaviors to be legal.
What would be legal? If you were an adult over the age of 21, and not a medical user, you would be able to possess up to one ounce of marijuana on your person. That would be lawful activity.
There would be no intervention from law enforcement. Marijuana would no longer be considered contraband. Law enforcement would not seize it. There would be no ticket. There would be no fine. This would be legal behavior.
The cultivation of marijuana in one's own private space; a twenty-five foot square garden, would also be legal under the law.
Now if a person harvests more than an ounce of marijuana from that garden, as logically they would, they would be able to possess that total amount of marijuana as well. That would be legal under Prop. 19.
This would be a mandate across the state. Law enforcement would have to abide by this mandate. Whether you're in Ukiah or in San Diego. If you're an adult over 21, you can possess and grow limited amounts of marijuana and that would be lawful behavior.
The possession of larger amounts of marijuana or growing larger amounts of marijuana - if you're not a patient, would still be considered illicit behavior because, as I said, Prop. 19 is about taking currently illegal behavior and making some of those behaviors legal but keeping some of those behaviors still illegal.
This is going before the voters. This has to be something that the majority of the voters would be willing to accept. And the majority of voters said "...we will accept the adult legal use of marijuana for non-medical purposes, but it has to be within limits; there have to be controls. "
"We understand that legal commodities are regulated, they're taxed, and there's controls and if we want marijuana to be legal for adults for non-medical purposes, we want assurances that there's also going to be common sense controls and regulations."
These were the controls that the voters said they wanted, but to repeat, for medical patients, this is not going to affect them at all. These impositions are only targeting non-medical users.
We know that there are 3.3 million Californians right now who are using marijuana; who are not patients. They do not have a doctor's recommendation. That's why we have 80,000 arrests in California every year. Most of those are for simple possession because there is such a large community that does not define themselves as patients and the law doesn't see them as patients. Prop. 19 is meant to protect those individuals from arrest and from legal harassment.
Paul: Now, Proposition 19 also proposes that certain communities, if they wish to, can enact regulations to allow for the private, commercial production and distribution of marijuana. In essence, allowing communities to pass regulations to allow for the production and retail sales of marijuana to adults over the age of 21.
This is an opt-in. Local governments don't have to do this. I would imagine that right out of the gate many won't do it, but some governments probably will and this will allow those governments and California as a whole to finally come to terms and say, "Look, we made marijuana illegal in 1913, but right now, one out of ten Californians say they use marijuana recreationally. Let's address that market; lets control it. Let's control who is producing the marijuana. Let's control who is selling the marijuana. Let's have common sense impositions regarding age on who can purchase marijuana and where they can use marijuana."
But once again, these regulations will only apply to non-medical users and it will be up to the jurisdictions of your local communities, so there will be local input.
I think the regulations will not be universal from town to town. Nor in my mind, should they be. They should reflect the wants and needs and morays of that local community just like the medical marijuana dispensary system right now works in California.
There are some towns that allow for dispensaries . There are other towns that don't. Most of the time, towns that allow for dispensaries are those where the local community has worked most closely with local politicians that have said that this is what we want to do; this is what we think would be best for the community. In those incidents, you have dispensaries, but one thing I would add. The dispensary system as it is now in California is not legal by statute. It is only legal base on local regulations. The same thing Proposition 19 is proposing for non-medical distribution and production of marijuana.
There is nothing in Proposition 215 or Senate Bill 420 that allowed for the retail, over-the-counter sale of marijuana for medical purposes. The only guidance for dispensaries comes from Attorney General Jerry Brown's guidelines.
We're going to have a new Attorney General come November 2nd in California. It could be Steven Cooley, who has said that, in his legal opinion, all dispensaries... Any dispensary in California where there are cash transactions taking place is illegal and he intends on closing them down.
The Governor of California may very well be Meg Whitman come November 2nd. She says marijuana, in her mind, is public enemy number one.
It makes no sense for the medical cannabis community to be divided over Prop. 19 when we all have the same enemies here. And that's Meg Whitman and Steven Cooley who intend to change the medical marijuana landscape in California dramatically when they get into office.
I would argue that we are all better off with Prop. 19 passing which will allow for the legal, lawful use of marijuana by everybody in limited amounts and allow for the retail sale and distribution of marijuana legally, by statute, in communities that wish to do so and there would be nothing that Meg Whitman or Steve Cooley could do to undermine those freedoms if they are passed into law.
So I hope that addresses several of the questions that you asked.
Mark: It really does, but I have a couple of other things that I did want to ask you that have been coming up.
Something that has always been an issue with me is the whole idea about taxation of cannabis. Taxing cannabis, for someone like myself who is actually a patient, seems absurd. Taxation, period, for something being used as medicine... You don't tax medicine now. Why do we want to impose additional taxation on something... Why do we want to treat cannabis like alcohol when the tax that's placed on alcohol is a sin tax? Cannabis is not a sin so why do want to impose a sin tax on cannabis?
Paul: The short answer is, we're not. Once again, Proposition 19 regulation applies to non-medical users. They don't apply to medical users.
The taxation that's talked about under Prop. 19... First, we're referring to retail sales tax. No different than if purchasing any commodity in California .
You pay a retail sales tax, even when purchasing medical marijuana. In communities that allow that. So, when we talk about taxation, we're talking about retail sales tax.
You're also concerned about an excise tax, an additional tax that could be imposed on the private commercial producer.
There is nothing in Prop. 19 that mandates that a community impose an excise tax.
Now the reason I think that people assume that there would be an excise tax imposed is because there was legislation pending in the California Assembly previously that did suggest an excise tax of $50 per ounce.
I think that a lot of people just assumed that Prop. 19 includes the same excise tax, but in fact, it doesn't. It leaves it up to the local communities to decide. Do you want to have an excise tax? Do you not want to have an excise tax? Once again, it's all about local control.
But of course, the medical community will most likely not be purchasing their medical marijuana from a retail outlet that provides marijuana to non-medical patients because if there was an excise tax imposed, it's only going to be imposed on the producers and sellers of marijuana for non-medical purposes.
Of course, for the patients right now who are growing their own marijuana, being compliant with California law, they can continue and they won't have to pay any tax. For that matter, under Prop. 19, the non-medical user who wishes to grow marijuana, if they grow it within the limitation of the five by five or twenty-five square foot space, they will not be paying a tax either.
Paul: A final point I would like to add to this is, right now, whether non-medical users want to admit it or not, they are paying an exorbitant tax when they buy marijuana. They're paying prohibition tax. Marijuana should not be four hundred dollars or five hundred dollars an ounce. It is because there is a risk premium attached to it.
The grower; the seller, all assume an extra layer of risk for fear of being arrested and that's what inflates the price. When that risk premium goes away, the price is naturally going to fall.
So right now we're all being taxed exorbitantly. It's just that the tax is going to an underground market. That is how I would address your question.
The medical user should not fear this tax. It's not going to affect them. The individual grower growing for non-medical purposes - the tax is not going to affect them. The tax is only going to affect the retail commercial distributor.
If there is a tax that's passed on to the consumer, it would only be passed onto the non-medical consumer who wishes to purchase their marijuana at a retail market in a retail establishment. And there is precedent for that. As you have said, there's taxes on alcohol, there's excise taxes on all sorts of commodities.
Go to the gas pump and put gas in your car. Guess what? You're paying a state tax, a Federal tax, and an excise tax on that commodity. Yet, we all still do it.
It's not a given that marijuana will even, necessarily, have such an excise tax imposed on it. It's not written into Prop. 19 that it should be the case. It could be the case. It might not be the case.
I would encourage people such as yourself; people who are very concerned about the issue of taxation and they fear over-taxation...if Prop. 19 were to pass...to get involved in your local government. Make sure when they're talking about ordinances and regulations and taxes for marijuana at the retail level, that you get regulations that make common sense; that reflect the culture of that community and that don't drive the cost so high on the commodity that it continues to foster a black market. Because we all want to get rid of that.
Mark: Thank you sir. Appreciate it.
Paul: Thank you.
© This article is copyrighted by Medical Cannabis Journal 10-13-2010Proposition 19 Prop. 19 cannabis marijuana Paul Armentano NORML medical cannabis
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