Blowing Smoke Against Prop. 19

SEPT. 30, 2010


Maybe the most controversial, certainly the most aromatic proposition on the November 2 ballot is Proposition 19, which would decriminalize marijuana. Not just for medical uses, but for use by any adult. Local governments would have the primary task of implementing Prop. 19, including collecting taxes for local use. The state could not collect taxes.

The Orange County Register, where I am an editorial writer, recently hosted those for and against Prop. 19. Although not an actual debate, the two sides were interviewed within the span of three hours, providing a point-counterpoint.

Backing Prop. 19 were Judge James P. Gray, a  retired superior court judge from Orange County. He long has been involved in drug legalization and other libertarian causes. His new book is, “A Voter’s Handbook: Effective Solutions to America’s Problems.”

He was joined by Hanna Liebman Dershowitz, an attorney in Culver City and a member of the Prop. 19 Legal Committee.

Taking the side of opposition were Dick Ackerman, a lawyer and former Republican leader in the California Senate. And Sandra Hutchens, who just was re-elected as the sheriff of Orange County.

Local smoke

Gray began with an argument for local control: “The beauty of this is the concept of federalism, not just within each state, but each city. Cities are allowed to opt in. The cities are in control. The cities will make the regulations. A private company wouldn’t have a right to sell it without city approval.

“Some of the opposition slaps the face of the cities, saying, ‘This is too complicated for you.’ That is a false concern.”

Ackerman disagreed, “This puts it all on the local governments. That would mean up to 500 different rules. I’m a 100 percent believer in local control. But this throws the state out – except for commercial production.”

Dershowitz made this comparison: “The model used here is the dry county/wet county system. Long-term, as best practices develop [in courts], the state will take a more active role.”

Although not as common as it used to be, a legacy of alcohol Prohibition was that some some counties, mainly in the rural American South and Midwest, banned alcohol; while neighboring counties legalized it.

Workplace highs

A major point of contention was over how Prop. 19 would affect workplaces. “Impaired job performance is the only criterion” by which an employer could judge that an employee has been using marijuana, Hutchens said. “The burden is on the employer to prove impairment. It will be tested in time over labor law. Random testing for marijuana might not be permitted. You would get more rights as a marijuana smoker than a cigarette smoker has.”

Ackerman added that “It’s a failing of our labor laws. The Legislature is anti-business. Those labor laws are not going to change. SEIU is supported it.” SEIU is the Service Employees International Union. “This is not about legalization of marijuana. That’s very misleading. It’s a hit on business. It puts businesses in a bind. It makes pot-smoking a civil right, almost. You can smoke it in the workplace, unless you can show it impairs the worker’s ability to do the job. It would put people in a special class.”

“We’ll see this criticism from the California Chamber of Commerce: nitpicking and exaggerating,” Judge Gray said. He insisted that, for someone to be challenged at work for using marijuana, “It has to affect their job performance. If they smoked it Friday night, by Monday morning there’s no impairment,” so under Prop. 19, the worker could not be challenged in that example.

How to determine impairment? “That’s a problem that will exist whether or not 19 passes,” he said. “The purpose of 19 is to treat marijuana like alcohol.”

Dershowitz insisted, “It does not require employers to control employees’ off-the-job use. Only on-the-job. There are several ways it’s not a problem” in the workplace. “Four sections of the Act address the workplace condition.”

The hard stuff

Another objection to Prop. 19 is that, as Hutchens put it, “The marijuana of today has a much higher THC content than that of the 1960s.” THC is the active hallucinogenic chemical in marijuana.

Gray said, “The cardinal rule of prohibition: always sell the harder stuff. Law enforcement says marijuana is much stronger than in the 1960s. But the law makes no distinction between weaker and stronger marijuana. So you can’t find milder marijuana,” because pushers, facing equal punishment for potent or mild pot, choose the former. “If it were legalized, you wouldn’t automatically use the harder stuff.”

Ackerman contended that marijuana is a “gateway” drug, encouraging young people to try it first, then go on to harder drugs such as methamphetamine and heroin.

Gray said, “Today by our laws we are forcing people up a ladder. If they have any reason to believe they might be tested, then they are pushed to use something else. For example, marijuana stays in the system 30 days, methamphetamine three days.”

He also pointed to Holland, which legalized marijuana, and Portugal, which legalized all drugs, but have not seen pandemics of addiction. Hutchens countered that, “In Holland, they have more drug cartels than before.”

One thing they agreed on was asset forfeitures, by which law enforcement seizes the homes, cars and other property of a person accused of using marijuana or another drug, often even without a trial. Critics, such as the group Forfeiture Endangers American Rights, insist that asset forfeiture is abused by many law-enforcement agencies.

“Marijuana would just be excluded from that,” Ackerman said. Gray agreed, “It would address that indirectly, as Prop. 19 reduces the number of people making money,” and so subject to forfeitures. “Marijuana is the number one cash crop in California; number two is grapes.”

Teen tokers

For at least 40 years, the easiest place to get marijuana has been from a teenager. “It will make it less available for teenagers,” Dershowitz said, by maintaining penalties for selling to teenagers, while lifting them for adults; thus allowing law enforcement to re-direct its enforcement energies. “Now it’s easier than getting alcohol.”

“My concern is youth,” Hutchens countered. “I do not think it sends the right message to our children. We end up paying for it in one way or another.

Roll up for the voters’ decision

For Gray, Prop. 19 is “one of the most important changes of my lifetime – and yours. If and when Prop. 19 passes, it will sweep the nation. The federal government is absolutely agitated.”

“This is not the right proposition. It’s deceptively crafted. It makes a lot of allegations that aren’t true. The initiative allows you to grow marijuana in your yard,” Hutchens said.

“It should be outlawed,” concluded Ackerman. “Alcohol is good, drugs bad. I’m old fashioned.”

John Seiler, an editorial writer with The Orange County Register for 20 years, is a reporter and analyst for His email: [email protected].

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  1. Fred Mangels
    Fred Mangels 1 October, 2010, 12:34

    I’m surprised the opponents didn’t bring up the supposed “point” some other opponents have brought up. The Santa Rosa Press- Democrat actually used this one in their NO on 19 recommendation:

    They claim that Prop 19 will allow people to legally drive under the influence of marijuana. A police chief of a major city (Redwood City?) actually brought that up.

    Silliness, imo, as the laws against driving under the influence have applied to marijuana and would still apply to marijuana after 19 is passed. It may or may not be tougher to make a case against someone with marijuana in their system but, as Judge Gray pointed out in regards another aspect of this, it would be just as tough to make a case now.

    Reply this comment
  2. DavidfromLosGatos
    DavidfromLosGatos 1 October, 2010, 12:41

    “It should be outlawed,” concluded Ackerman. “Alcohol is good, drugs bad. I’m old fashioned.”

    What a dipweed thing to say. “I don’t get it, so I want to demonize it and throw you all in jail and ruin your lives. Meanwhile, I’ll go get loaded up on some good ole tasty alcohol.”

    Our compulsive need as humans to control (and demonize, moralize, etc) what humans say or do, and then explain how it’s for their own good, knows no bounds from the left or the right.

    Regarding Hutchins, is she concerned she cannot justify paying cops hundred thousand plus a year pensions starting at age 50 without drug laws to keep their work (and civilian bystander lives) dangerous?

    We need a “STFU and get out of my life (and wallet)” political party.

    Although my pot smoking years are long gone, I’m voting YES on prop 19 just because of guys like Ackerman. I might even grow a few plants out in the yard as part of my personal “green” initiative. Are they draught resistant?

    OK. Rant off. Almost time for a good old fashioned beer.

    Reply this comment
  3. Fred Mangels
    Fred Mangels 1 October, 2010, 13:37

    We need a “STFU and get out of my life (and wallet)” political party.

    You already do have one: The Libertarian Party.

    Reply this comment
  4. DavidfromLosGatos
    DavidfromLosGatos 1 October, 2010, 15:09

    Yeah, I know. I am actually registered with the Libertarian Party for whatever that’s worth. Too many so-called “Libertarians” are not actually libertarians, except on one or two issues.

    Unfortunately, I believe the great majority of Americans (left or right)really do want to control what I can say and/or do according to whatever rules they believe for whatever reason. They certainly do not have the ability to STFU, and they enjoy having their hands in my wallet.

    Having said this, if Prop 19 passes, it will be because enough folks like me who don’t give a rat’s ass about smoking pot want to send a signal to government starting right at the top all the way down to the cat catcher to “back off.”

    Reply this comment
  5. Bobnormal
    Bobnormal 1 October, 2010, 15:10

    Cheap weed is just as good as “chronic”, it just doesn’t taste as good,The biggest difference is this, cheap sativa comes from Mexican cartels, and high priced Indica comes from up north in the “emerald triangle” north of S.F. I quit 3 months ago so I can pass a drug test for any new job I’m lucky enough to get, so now I’ll go get some beer,

    Reply this comment
  6. DavidfromLosGatos
    DavidfromLosGatos 1 October, 2010, 15:52

    “so now I’ll go get some beer.”

    Yes, we Americans are cool with beer drinking during your private time, but not pot smoking. Maybe that will change.

    I was staying in Australia a few years ago (2007), and the local tv news had a story about how they couldn’t get enough workers for manual labor jobs like putting asphalt on roads (keep in mind they don’t have a source of cheap labor that can walk across the border into Australia).

    The crux of the problem was that they required applicants to pass a drug test, such as Bobnormal had to do, and not enough applicants could pass the test. So, they were considering whether to stop the test, so they could get the roads paved. Tough dilemma, I suppose.

    Just imagine if we had no cheap labor from Mexican, and instead expected our own “working class” citizens – especially the youthful ones, to pick strawberries and artichokes, but that they had to pass a drug test? So much for strawberries and artichokes ….

    Reply this comment
  7. Grand Jury Foreman
    Grand Jury Foreman 2 October, 2010, 01:56

    It is my understanding that the test to detect POT in one’s system is NOT the same as the alcohol tests.

    Medical tests can only detect the presence of POT in the blood stream, which entered someone’s blood stream sometime in the last 30 days (or so). The tests can’t detect the AMOUNT of THC, nor determine whether or not one is ‘sober’ enough to drive, (absent the smell of POT smoke in the car for instance), when pulled over in a traffic stop.

    So it is a bit different from testing for blood-alcohol level. This would certainly prove problematic if someone is trying to determine a blood-pot level where worker performance would be impaired on the job.

    Further, prices in Northern California will remain relatively stable whether or not POT is legalized. The BIG money in POT production is still the shipment across state lines to States where POT production and possession is still a criminal offense. So while we may sell POT at $1-2k/pound, they are more than willing to buy our ‘good stuff’ in Louisiana, for $4k/pound.

    Lastly, what makes ANY law enforcement officer or county administrator believe that someone who has illegally cultivated POT in the past, will suddenly BURST forward with the passage of Prop 19, to be taxed on a product that they so far have produced tax free? To me, the tax-revenue aspects to local governments, seem a complete fallacy.

    Reply this comment
  8. Rational Voice
    Rational Voice 2 October, 2010, 11:11

    “… on the November 2 ballot is Proposition 19, which would decriminalize marijuana.”

    INCORRECT. Prop 19 LEGALIZES MARIJUANA. It does NOT decriminalize.

    Decriminalization is when the law effectively say it’s OK to posses something, but it’s not OK to grow/manufacture/sell/distribute/or move it.

    Decriminalization is what WE ALREADY have in California. It does not work, and is a complete waste of time, money, and resources. In fact, decriminalization can actually be thought of as the economic stimulus plan for criminal syndicates, because it allows the market to get bigger, but doesn’t address ANY of the actual problem areas.

    LEGALIZATION on the other hand is the law explicitly stating, it’s OK to have it, to sell it, to make it, to grow it, etc. All with limitations of course; however, it DOES address the problem areas by setting up a structure under which the LEGAL market can actually be controlled.

    So you see, decriminalization = no fixes, more problems — but, legalization = fixes, and a slightly different set of more reasonable problems.

    PROP 19 IS FULL LEGALIZATION, not decriminalization.

    It is your patriotic duty as an American to vote AGAINST big-business, big-government, and the constant degradation of the rights you thought you were born with.

    If you’re an American patriot, and you love this country, you MUST Vote YES ON PROP 19. Continuing the current course is simply unacceptable.

    Reply this comment
  9. John Gardner
    John Gardner 4 October, 2010, 06:33

    On workplace highs: ““We’ll see this criticism from the California Chamber of Commerce: nitpicking and exaggerating,””

    We won’t hear from this guy when there is a disaster at a chemical plant or refinery because an operator had a joint or two an hour before going on shift (not the two days before which is all this neophyte evidently can conceive of). Well, actually, he WILL blame the company. But, he won’t mention that he helped defang the drug testing programs the employer had in place to ensure a drug-free work place …

    Now, if companies were held harmless against drug-involved disasters, THAT would be principled support for Prop 19 …

    Reply this comment
  10. DavidfromLosGatos
    DavidfromLosGatos 4 October, 2010, 10:36

    It seems perfectly appropriate to me that an employer make whatever rules they want that are reasonably related to workplace (and public) safety. This is not a question of trampling my constitutional rights, since I can choose to not work there. An excellent example is airline pilots. It does not matter if they can “legally” have a beer before they fly – their work place safety rules prohibit same.

    I assume the chemical plant already does daily testing of employees to see if they are drunk – right? I mean, it is the same problem, isn’t it? Or, do you believe that people who smoke pot would ignore workplace rules and come to work stoned, even though they would not ignore workplace rules and come to work drunk?

    Reply this comment
  11. Diana
    Diana 11 October, 2010, 15:31

    if prop 19 passes more teens will be getting high. Already there’s a majority of teens smoking out at my school passing this law will make it even worst. If getting achol can be easy how easy can it be to get some pot.

    Reply this comment
  12. howard
    howard 12 October, 2010, 09:07

    Where’s the trust these days I ask…all of our freedoms are being dismantled one by one. When I get home from work one toke is all I want. Its my time, I’m off the clock, leave me alone. Meanwhile you have all these hypocrites against 19 that drink themselves drunk or smoke cigarettes. And to take it a step further what about all these over the counter pills one can buy that if to much is ingested you could die…the good old FDA…such hypocrites. YES ON 19

    Reply this comment
  13. Bill Hoover
    Bill Hoover 22 December, 2010, 06:18

    Legalizing marijuana will increase marijuana use. No on 19!

    The NFP estimates that more than 80 million people participate in Red Ribbon events each year.

    Between 1979 and 2007, the rate of illegal drug use fell by half. Programs such as D.A.R.E. taught schoolchildren the facts about drugs, alcohol and tobacco and bolstered their critical thinking and decision-making skills so they can do more than just say no. In conjunction with Penn State University, the new D.A.R.E. middle school curriculum has been vetted and proved effective at reducing drug use. In recent years, D.A.R.E. has added units on prescription and over-the-counter medications, abuse of which is growing among teens — another reminder, along with abuse of alcohol, that just because something is legal, it doesn’t necessarily reduce the risk of abuse.

    Reply this comment

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