NEWSWEEK: Home-Grown Reefer Madness

by Jessica Bennet

The California proposition to legalize recreational pot use may end up a ‘jumbled, legal nightmare,’ as opponents claim. But the main issue may be money.

The argument against Proposition 19, the Californiaballot initiative that would legalize marijuana, goes something like this: if the initiative were to pass, it would create a world where lackadaisical employees would show up to work with bloodshot eyes and slurred speech. In between responding to e-mails, operating machinery, or planning a classroom lecture, they could take a quick break—poking their heads out the closest door or window to light up, inhaling the sweet smoke of California skunk, without any consequences. Out on the streets, intoxicated drivers would weave in and out of Southern California palm trees, and the smell of cannabis would seep from local apartment complexes, where new dealers would be growing stock. Marijuana would slowly begin showing up in schoolyards where it wasn’t already; at parties, too. Ultimately, it would be a gateway drug to much, much worse.

It’s a haze-ridden portrait that opponents of the Regulate, Control and Tax Cannabis Act, which is inching toward a a statewide vote this fall, are doing everything in their power to make sure voters see. Their official argument, to be distributed to polling stations come November, warns that the measure will increase intoxicated driving, that schoolbus operators could arrive to bus stops already high, or that employers who let staffers sell candy bars at work would suddenly have to let them sell dope, too. To convolute things further, the California Chamber of Commerce issued a report last week suggesting that—should the measure pass—local businesses would be required to pay for marijuana-related accidents through workers’ comp, and that employers would have to permit employees to smoke pot in the office. Democratic Sen. Dianne Feinstein, the co-chair of the opposition campaign, meanwhile, has called Prop 19 a “jumbled, legal nightmare.”

The reality, of course, is more complicated than even Feinstein has alluded. And for anyone familiar with California politics—or the current debate over Proposition 8—“jumbled, legal nightmare” in California is a bit like business as usual. There’s no doubt that, if passed, Prop 19 would face interpretive challenges in court. (Indeed, California’s successful medical-marijuana measure, passed in 1996, is still facing such litigation.) But more important than the ultimate legal claims (or whether Prop 19 will ultimately face a “legal nightmare”), say advocates, is separating fact from fiction right now. In their eyes, the opposition’s portrayal of California as a dangerous, drug-hazed haven for lazy workers and intoxicated drivers sounds a lot more like a bad weed trip than anything the proposed law would actually do.

At the heart of the marijuana debate, in fact, is not the morals of pot use, or even the technical issues related to consumption on the job (we’ll get to that later). Rather, it’s what you might expect in capitalist (albeit pot-loving) California: the matter of cold, hard cash. Prop 19 would allow anyone older than 21 to cultivate a small amount of marijuana for personal use, and permit adult consumption in private—as long as no minors are present. But it would also permit cities to regulate and tax sales.

In a state that’s $19 billion in the red, where 400,000 residents already consume medical marijuana legally—and another 2 million do so illegally—you can imagine how $1.4 billion in annual tax revenue, as the State Board of Equalization has predicted, might sound appealing. Harvard economist Jeffrey Miron has estimated that cannabis prohibition costs the nation $7 billion in potential tax revenue; in Oakland, the one place in California where medical marijuana is already being taxed, city leaders say the funds will help save libraries, parks, and other public services. The bottom line? “People are no longer outraged by the idea of legalization,” former San Francisco mayor Willie Brown told the San Francisco Chroniclelast year. “And truth be told, there is just too much money to be made [from it].”

That cultural acceptance is already visible at home in California, where Gov. Arnold Schwarzenegger proclaimed recently that it was “time for a debate” on marijuana taxation. It extends, however, all the way to the federal government, which has vowed—despite pot still being illegal on a federal level—to cease raiding medical dispensaries authorized under California law. In a state where the use of medical marijuana has been commonplace for upwards of a decade, recreational consumption is a virtual technicality—effectively legal since California became the first of 13 states to legalize medical cannabis, in 1996. But “medicinal” is something of an open joke in the state, since anyone over 18 with a doctor’s note—easy to get for ailments like anxiety or cramps, if you’re willing to pay—can get an ID card providing easy access to any of the state’s hundreds of legal marijuana dispensaries. (As one dispensary owner recently told NEWSWEEK: “You can basically get a doctor’s recommendation for anything.”) “This is a new world,” says Robert MacCoun, a professor of law and public policy at University of California, Berkeley, and coauthor of Drug War Heresies. “If you’d have asked me four years ago whether we’d be having this debate today, I can’t say I would have predicted it.”

Support for the current proposition, which is funded by Oakland entrepreneur Richard Lee, is roughly split, with the latest poll, by SurveyUSA, showing 47 percent in favor and 43 percent opposed. The pro-pot crowd may be ahead by a pin, but it makes the opposition’s cries that the initiative is “too vaguely worded”—or, worse, that it indeed forces employers to allow workers to smoke on the job—all the more damaging. When it comes down to it, though, much of this is fear-mongering—backed up by speculation that would likely be settled in court. “We’re not saying this is going to happen,” says Jennifer Shaw, a legal consultant for the Chamber of Commerce and the author of the group’s recent report. “But it could.”

Except: could it really? Two years ago, in the context of the medical-marijuana law, the state Supreme Court determined that pot use, legal or otherwise, could indeed be grounds for firing. Prop 19 specifically states that the initiative would not override “any law prohibiting use of controlled substances in the workplace”—a claim that’s since been backed up by the state’s Legislative Analyst’s Office, which provides nonpartisan policy analysis for the legislature. All of this could certainly be challenged in court, but the parallels are simply too similar to ignore. That 2008 Supreme Court ruling even noted specifically that claims that the state’s medical marijuana law would make workplace consumption legal were “disingenuous.” “You can be absolutely certain of at least two things if Prop 19 passes,” says Eric Sterling, the former counsel to the U.S. House Judiciary Committee who now serves as an unpaid legal adviser to the “Yes on 19” campaign. “No employer will be required to allow workers to smoke marijuana on the job, and the California Chamber of Commerce would fight all the way to the Supreme Court anyone who made such a claim.”

Still, it’s easy to see how voters might be confused. Which is why proponents say they want to make one thing clear: that nothing about Prop 19 would change the current legislation that bans marijuana on school campuses, and the initiative maintains strict penalties for driving under the influence. (Remember also: those who do smoke it must be over 21.) As for crops sprouting up all over sunny California apartment complexes, á la Showtime’s Weeds? Well, think of it this way: pets may not be illegal, but they can certainly be banned from an apartment complex. Landlords have the legal wherewithal to treat marijuana exactly the same way. “A landlord can pretty much do what they want, as long as it’s within reason,” says Tom Bannon, head of the California Apartment Association. “That’s just the way it works.”

The laundry list of other possible complications arising from the law certainly doesn’t end there, but proponents say they’ve heard many of the arguments before. “If you went back and looked at opposition arguments running up to the 1996 passage [of Prop 215, which legalized medical cannabis], many of them were the same—the kids, the driving, the lighting up on the job,” says Paul Armentano, the deputy director of the National Organization for the Reform of Marijuana Lawsand the coauthor of Marijuana Is Safer. “But none of those things happened. Almost to a fault, incidents of intoxicated driving went down; even youth consumption declined. Those claims weren’t true then, and they’re not going to be true this time around.”

As California debates the issue, residents say you can be sure about one thing: Where there’s smoke, there will certainly be litigation.