DEBUNKING FALSE FEARS ABOUT PROP. 19
Given that it was written partially in response to opinion polls, rather than as an exercise in pure theory, Proposition 19, which would legalize the possession and use of up an ounce of marijuana (cannabis) for adult Californians, contains provisions that an advocate of pure devotion to liberty might not have included. Some of these provisions have raised questions, some justified and some exaggerated out of any relation to reality. We thought it appropriate to deal with some of these issues, chiefly the reasons for having a “local option” for sales and cultivation and the possible implication this proposal would have on the ability of employers to discipline people who are impaired at work due to cannabis use, and of police to handle drivers similarly impaired.
Prop. 19 would establish a statewide policy, to wit: adults may possess up to an ounce of cannabis and may cultivate a patch of plants amounting to 25 square feet. But it contemplates that there will be a demand to purchase cannabis, as well, so it allows localities to develop their own policies for regulating cultivation and sales (and collecting taxes on them) or to prohibit any sales or cultivation beyond the 25-square-foot limit.
Critics argue that it may be too much to ask of city councils to develop sensible regulations in an unfamiliar area. There is also a fear that there will be so much variance from city to city that it will be just too confusing for law enforcement officials, and some marijuana users might get caught in compromising situations as they travel from city to city.
The local option plan grew out of the experience of so many cities at implementing (or not implementing) medical marijuana policies in response to Prop. 215 in 1996. It became obvious that some city governments would prefer to have no medical marijuana dispensaries, while others seemed to welcome them, or at least to accommodate their regulations to the policies endorsed by voters. Prop. 19 allows local jurisdictions to make that choice.
“It’s funny,” Joseph McNamara, a Hoover Institution research fellow and former police chief of San Jose, told us. “When I was a police chief, local officials complained constantly about mandates, most of them unfunded, from Sacramento. Now many of these same people object to a proposition without a mandate on local government. If it had included a mandate the outcry would have been louder. I suspect it’s a matter of stretching to find a reason to oppose Prop. 19.”
In fact, different cities have different policies toward the sale of liquor (within the framework of state laws), different zoning regulations, and different policies on a wide range of issues. Developing regulations that respond to local concerns within the framework of state and federal laws is what city councils and other arms of government are supposed to do. The beauty of local option is that the experience of different cities will serve as a laboratory of policy alternatives from which policy students and other city councils can learn what works and what doesn’t.
As for employment policies, Prop. 19 specifically states that “the existing right of an employer to address consumption that actually impairs job performance shall not be affected.” However, that clause is preceded by one that says “No person shall be punished, fined or discriminated against, or be denied any right or privilege for lawfully engaging in any conduct permitted by this Act.” Critics have contended that this creates a “protected class” of marijuana smokers who are not subject to the same rules as the rest of us.
This is an incorrect inference. Prop. 19 reinforces laws against driving while impaired, makes it illegal to smoke in front of minors, and makes it illegal to smoke in public places. Cannabis users under Prop. 19 will be subject to all the constraints imposed on other citizens and some unique to them.
The reason for prohibiting discrimination against cannabis users is simple. Existing testing methods can detect metabolites of cannabinoids for up to a month after cannabis use – long after any intoxication or impairment has disappeared. Employers can’t fire an employee for getting drunk on Saturday night so long as he or she shows up Monday able to perform satisfactorily. A similar policy should apply to marijuana and will apply if Prop. 19 passes.
A similar policy will apply to driving while impaired. A complication is that there is no simple roadside test for marijuana use. The responsibility of police will be to look for signs of impairment, as is the case now.
Legalizing marijuana use for adults is a significant step away from nanny-state policies and all the crime, corruption and violence that accompany marijuana prohibition, so some caution about such an important move is understandable. But the impact on employment polices, driving laws and the responsibilities of local government are not sufficient to justify rejection of this proposal.