Legal Commentary

Law Professors? Petition in Support of California Proposition 19

By Ilya Somin

The Yes on 19 website has posted a petition by law professors in support of California proposition 19, which would decriminalize marijuana in that state. Among the signers are six of the Volokh Conspirators ? Jonathan Adler, Randy Barnett, David Bernstein, David Post, Sasha Volokh, and myself. There are also many prominent non-VC signers, including Erwin Chemerinsky, Alan Dershowitz, Paul Butler, and David Friedman (well-known law and economics scholar and son of Milton):

As law professors at many law schools who focus on various areas of legal scholarship, we write this open letter to encourage a wholesale rethinking of marijuana policy in this country, and to endorse the Tax and Control Cannabis 2010 initiative?Proposition 19?that will be voted on in November in California.

For decades, our country has pursued a wasteful and ineffective policy of marijuana prohibition. As with alcohol prohibition, this approach has failed to control marijuana, and left its trade in the hands of an unregulated and increasingly violent black market. At the same time, marijuana prohibition has clogged California?s courts alone with tens of thousands of non-violent marijuana offenders each year. Yet marijuana remains as available as ever, with teens reporting that it is easier for them to buy than alcohol across the country.

Proposition 19 would remove criminal penalties for private use and cultivation of small amounts of marijuana by adults and allow California localities to adopt?if they choose?measures to regulate commerce in marijuana. Passage of Proposition 19 would be an important next step toward adopting an approach more grounded in reason, for California and beyond.

Our communities would be better served if the criminal justice resources we currently spend to investigate, arrest, and prosecute people for marijuana offenses each year were redirected toward addressing unsolved violent crimes. In short, the present policy is causing more harm than good, and is eroding respect for the law.....

This country has an example of a path from prohibition. Alcohol is subject to a regulatory framework that is far safer in every respect than the days of Al Capone. Just like the State of New York did when it rolled back Prohibition 10 years before the nation as a whole, California should show leadership and restore respect for the law by enacting the Tax and Control Cannabis 2010 initiative this November.

Unfortunately, lifting the state ban on marijuana possession will not fully legalize marijuana in California. The federal ban that the Supreme Court upheld in Gonzales v. Raich will remain. So far, the Obama Administration has not kept the president?s campaign promise to stop federal raids on purveyors of medical marijuana in states where it is legal, and the administration almost certainly would not cooperate with the much broader legalization envisioned by Proposition 19.

On the other hand, federal enforcement resources are limited. So Proposition 19 will greatly reduce the incidence of marijuana prosecutions in California, even if the drug remains theoretically illegal there. Perhaps more importantly, passage of Prop 19 would be a major political setback for drug prohibition. A victorious Prop 19 would likely be imitated in other states with referendum initiative processes. That in turn would put the federal War on Drugs under increasing stress. If several large states withdraw state resources from marijuana enforcement, the feds would either have to massively increase their own enforcement efforts or consider giving up the fight. At a time of increasing budgetary problems, the latter option might be more likely.

Full post as published by The Volokh Conspiracy on October 14, 2010 (boomark / email).