Federal-State Law Inconsistency Shouldn't Stop CA
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Federal-State Law Inconsistency Shouldn't Stop CA
Posted by CN Staff on July 28, 2010 at 06:10:06 PT
By Hanna Liebman Dershowitz
Source: Los Angeles Times
California -- The law is the law. If we unquestioningly accepted that maxim, imagine where we would be today. Jim Crow would be alive and well, rivers and skies would be polluted, and women wouldn't be allowed to vote.Yet such is the mindset of many of those who criticize Proposition 19, the marijuana regulation and taxation initiative on the November ballot. In his July 18 Times Op-Ed article, UCLA public policy professor Mark A.R. Kleiman declares that state legalization "can't be done."
He points out, correctly, that if the initiative is successful, the federal marijuana prohibition laws will remain in place. What he assumes, incorrectly, is that federal agents will swarm into California, busting farmers and arresting distributors and shopkeepers, to say nothing of the garden stores that sell them equipment and supplies, the accountants who do their books and the municipal tax officials who delight in assessing and collecting the new tax revenues.Kleiman might well have uttered, "The law is the law."But the law is neither absolute nor infallible, and that's why Californians can  and should  legalize, regulate and tax marijuana-related commerce.The federal-state dynamic concerning marijuana is not complicated. Under our system of federalism, both the states and the feds may prohibit commerce in marijuana, but neither is required to do so. Similarly, during alcohol prohibition (1920-33), commerce in alcoholic beverages was prohibited not only by federal law (the Volstead Act) but by the laws of most states. In 1923, New York repealed its state prohibition laws, leaving enforcement, for the remaining 10 years, entirely to the feds. California voters overwhelmingly did the same thing in 1932, one year before national prohibition was repealed.Let's think this through. If Proposition 19 passes, two important balls roll into the feds' court. The first is that the sole responsibility and expense of enforcing marijuana prohibition will be shifted to them. After Nov. 2, marijuana "offenders" could be arrested only by federal agents, prosecuted only under federal law, and sentenced only to federal detention.If the feds undertook this, cases involving simple possession cases and small-time marijuana businesspeople, usually relegated to state courts, would flood federal courthouses. But even with a drastic increase in funding for federal enforcement, such activity would barely put a dent in California's marijuana trade, and would fail to stifle California's policy change, as the federal government has failed to do since the first medical marijuana laws were passed 14 years ago. Moreover, justifying the invasion into a state's province to undermine the will of the voters at such great expense to taxpayers would be highly questionable, especially in the current economic climate, not to mention a political climate that is at best lukewarm on prohibitionist policies.The second ball is even more significant. Voter approval of Proposition 19 would shift to the feds the responsibility and burden of justifying marijuana prohibition in the first place. Now, the Washingtonians who have never questioned decades of anti-pot propaganda can explain to the people of California why we cannot be trusted to determine our state's marijuana policies. Let them endorse the prohibition laws' usefulness as a tool of oppressing minorities. Let them celebrate how minor marijuana violations cost people their jobs, their housing, custody of their kids, and entrap them permanently in vast criminal justice databases. Let them justify the utter hypocrisy of the legal treatment of alcohol and tobacco, as compared with the illegal treatment of marijuana. Let them tell us how many more people will have to be prosecuted and punished before marijuana is eradicated, how much that will cost, and where the money will come from.Proposition 19's success in November would put the feds in a quandary, yes, but it is a quandary of their own making. Unlike alcohol prohibition, which required a constitutional amendment, Congress could fix this easily with a simple amendment to the Controlled Substances Act allowing conduct legal under state law and respecting the right of states to regulate and tax the cannabis industry. After all, determining what is a crime is traditionally handled at the state level; indeed, federal prosecutions of drug possession make up a miniscule portion of overall drug arrests.Instead of hewing to a misguided and unworkable federal hegemony in this area, encouraging innovation at the state level would be a more rational federal policy. And to be clear, legal scholars have long disagreed with Kleiman's conclusion that the feds must and will intervene to try to quell state action in this area.States need not shrink from countering federal policy on marijuana. California can show leadership in driving needed reforms, as it has before. In other words, the law need not be the law if you're willing to stick your neck out. Cautious academics and politicized public employees will always embrace the status quo, joined by risk-averse politicians who misconstrue a lack of constituent "noise" on this issue as satisfaction with current law, not fear. But voters know better.Not only can Californians regulate and tax marijuana, we should.Hanna Liebman Dershowitz, an attorney in Los Angeles, is a member of the Proposition 19 legal subcommittee. Cited: California Can't Legalize Marijuana: Los Angeles Times (CA)Author:   Hanna Liebman Dershowitz Published: July 28, 2010 Copyright: 2010 Los Angeles TimesContact: letters latimes.comWebsite: -- Cannabis Archives 
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Comment #8 posted by FoM on July 29, 2010 at 06:31:01 PT
Thank you. I really like Neil's acoustic music but I love when he breaks out Old Black and jams and jams. I am so sorry one of his best friends since the early 70s Ben Keith passed away on Neil's Ranch. Ben has been in almost all of Neil's recent albums.
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Comment #7 posted by afterburner on July 29, 2010 at 06:10:28 PT
FoM - OT
New Neil Young Songs.
Rocker to premiere tracks in Toronto.
New Neil Young Songs to Premiere, Plus Archives Volume Two News.
Posted on Jul 26th 2010 6:19AM by Farah Ishaq.
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Comment #6 posted by Canis420 on July 28, 2010 at 20:26:48 PT:
Communication From LEAP
About the crack/powder disparity and most important to me the Webb Commission was approved unanimously!The U.S. House of Representatives just reduced the grotesque disparity in sentencing for crack vs. powder cocaine. And last night, the "Webb Commission" to study criminal justice reform was approved unanimously. This didn't happen in a vacuum. And it wasn't inevitable. You, and many others like you, made this happen, through your support of drug reform in general and LEAP in particular.The more exposure LEAP gets, the more we expose the cracks in the Drug War. And it's paying off-taboos are falling, fear tactics are failing, and folks are able to talk openly about our nation's failed drug policies.In this case, that translates directly to thousands of people literally regaining their freedom-walking out of jail and to their families -- because of your support.In the future, it will result in literally hundreds of thousands of non-violent citizens regaining their freedom, and America regaining its soul, as we end drug prohibition.I have become executive director of LEAP at a time of intensified progress, where we are transforming the unthinkable into the commonplace at a rate none of us dared dream just a few short years ago.Hang on, the ride is going to accelerate-our momentum is unstoppable-and the race is to the swift.Again, thank you so much for your support of LEAP.Sincerely,Neill Franklin
Executive Director
Law Enforcement Against Prohibition
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Comment #5 posted by FoM on July 28, 2010 at 16:35:04 PT
Congress Approves Crack Cocaine Sentencing Changes
July 28, 2010URL:,0,7278804.story
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Comment #4 posted by FoM on July 28, 2010 at 16:30:54 PT
Thank you for the link. I stopped posting blog posts a while ago since I have a lot going on and there are so many blogs. Thanks for the link konagold.
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Comment #3 posted by FoM on July 28, 2010 at 16:29:16 PT
New England's First MMJ Training Center
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Comment #2 posted by josephlacerenza on July 28, 2010 at 16:26:55 PT
Did this get posted?
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Comment #1 posted by konagold on July 28, 2010 at 12:07:56 PT
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