November 7, 2007
Pursuant to Elections Code Section 9005, we have
reviewed the proposed initiative cited as the “California Cannabis Hemp
& Health Initiative 2008” (A.G. File No. 07‑0064). The initiative adds a
new section to the Health and Safety Code which, in effect, repeals
current state criminal prohibitions against the use, possession, and
sale of marijuana.
Background
Proposition 215. The cultivation
and possession of marijuana for medicinal purposes was legalized in
California in 1996 through the passage of Proposition 215 by the voters.
However, the U.S. Supreme Court ruled in 2005 that federal authorities
could continue to prosecute California patients engaged in the medicinal
use of marijuana for violations of federal law, which prohibits
marijuana use. The Federal Controlled Substances Abuse Act (Title 21,
United States Code, commencing with Section 801), provides criminal
sanctions for various activities relating to marijuana.
Proposal
Legalization of Marijuana-Related
Activities. The initiative provides that no person, individual,
or corporate entity could be prosecuted for the possession, cultivation,
transportation, distribution, or consumption of cannabis hemp, including
hemp industrial products, hemp medicinal preparations, hemp nutritional
products, and hemp religious or recreational products. All of these
products use as an ingredient the hemp plant commonly referred to as
cannabis or marijuana. This measure also provides that the manufacture,
marketing, distribution, or sale between adults of equipment or
accessories associated with the above products shall not be prohibited.
Medicines. As noted earlier,
Proposition 215 legalized the cultivation and possession of marijuana
for medicinal purposes. Similar to Proposition 215, this initiative
legalizes the use of marijuana for medicinal purposes in California,
regardless of the age of the patient, and provides that licensed
physicians cannot be penalized for prescribing marijuana for medicinal
purposes.
Regulation of Commercial Production.
This initiative allows, but does not require, the Legislature to
regulate the commercial production of marijuana products for
recreational or religious use in a manner analogous to California’s wine
industry model. Commercial production is defined as the production of
more than 99 flowering female plants and 12 pounds of dried, cured
cannabis hemp flowers. The production of a lesser amount is deemed
personal use exempt from permitting or licensing requirements or
taxation.
Distribution of Marijuana Products.
The initiative allows, but does not require, the Legislature to
license and impose fees on concessionaires who could distribute
marijuana products to persons 21 or older for personal recreational or
religious use. Any such license or permit fee could not exceed $1,000.
In addition, the Legislature could place excise taxes on the commercial
sale of marijuana products up to $10 per ounce.
Regulation of Marijuana Use. This
measure generally permits the legal use of marijuana for personal
recreational or religious purposes by persons age 21 or older. However,
under the measure, the Legislature could impose standards restricting
the use of marijuana products for personal recreational or religious use
by persons operating a motor vehicle or heavy machinery, or engaging in
conduct that could affect public safety. Personal use of such marijuana
products in enclosed or restricted public places could be regulated.
Release of Marijuana Offenders. The
initiative states that existing statutes which relate to marijuana
products would be repealed and that persons in prison or jail, or on
parole or probation, convicted under such statutes for nonviolent
offenses would be released from custody.
Records of Marijuana Offenders. The
initiative requires the deletion of all criminal records for all persons
currently charged with or convicted of legal violations related to
marijuana products. The Attorney General would develop and distribute an
application form individuals could file to compel the destruction of
such records upon the payment of a $10 fee.
Law Enforcement Activity. This
initiative bars the use of California law enforcement personnel or funds
to assist in the enforcement of federal laws relating to marijuana. The
measure also provides that any person who “threatens the enjoyment” of
the provisions of this measure is guilty of a misdemeanor.
Drug Tests for Past Marijuana Use.
The initiative states that testing for past use of marijuana shall not
be required for employment or insurance, nor considered in determining
employment or intoxication.
Challenge to Federal Prohibitions.
This initiative provides that the state would repudiate and challenge
federal marijuana prohibitions that conflict with the act. Adoption of
this measure in itself, however, would not alter federal law, which
provides criminal sanctions for the same activities. Persons who
violated federal laws relating to marijuana would still be subject to
federal prosecution.
Fiscal Effects
Effect Under Enforcement of Current Federal
Law. So long as the federal government chooses to maintain and
enforce its own laws prohibiting marijuana, this measure would have the
following state and local fiscal effects:
·
Shift of Felons From Local and State Incarceration
to Federal Facilities. The measure would result in significant
savings to state and local governments, probably in the several tens of
millions of dollars annually, by lowering the number of marijuana
offenders incarcerated in state prisons and county jails. It would also
reduce the number of persons placed on state probation or parole. The
county jail savings would decline to the extent that jail beds no longer
needed for marijuana offenders were used for other criminals who are now
being released early because of a lack of jail space. To the extent that
additional violators of marijuana laws might be prosecuted by federal
authorities, federal prison costs might increase.
·
Redirection of Law Enforcement Resources.
The measure would potentially result in a major reduction in state and
local costs for enforcement of marijuana-related offenses. However, it
is likely that state and local governments would redirect some or all of
their resources to other law enforcement activities, reducing or perhaps
eliminating the savings that could otherwise be realized. In addition,
if the Legislature chose to regulate the use of marijuana products by
motorists and other parties, as the initiative authorizes, some law
enforcement resources would likely be devoted to this effort.
·
Redirection of Court Resources.
The measure would likely reduce the number of criminal
cases in the state court system. However, trial court costs may not
decrease substantially since very few marijuana cases result in a
criminal trial. The decrease in caseload is likely to free up resources
for prosecutors and public defense attorneys to pursue other types of
criminal cases.
·
Effect on Substance Abuse Programs.
The measure would likely result in an increase in the consumption of
marijuana, resulting in a potentially significant increase in the number
of individuals seeking publicly funded substance abuse treatment
services. For example, such an increase in marijuana consumption could
result in an increase in the costs of a few million dollars annually in
the state Drug Medi-Cal program, which provides substance abuse
treatment services for eligible low-income persons. This measure could
also have fiscal effects on state-funded drug treatment programs for
criminal offenders, such as drug courts, which could shift resources for
involuntary treatment of marijuana offenders to treatment of offenders
for other types of drugs.
·
Elimination of Medical Marijuana Program.
The measure could potentially result in the elimination
of the state’s Medical Marijuana Program, a patient registry that
identifies those individuals eligible, under state law, to legally
purchase and consume marijuana for medical purposes.
This program costs almost $1 million annually in special funds
derived entirely from patient application fees. The initiative would
likely reduce both the cost of this program and the offsetting amount of
revenues derived from its fees.
·
Prohibition Against Testing for Past Use of
Marijuana by Employers. The
measure might result in slightly lower costs for state and local
agencies that perform drug testing, since these agencies would no longer
be allowed to test for past use of marijuana.
These cost savings are likely to be minimal, however, since such
agencies would most likely maintain their programs to test for other
substances.
·
Elimination of Federally Funded Marijuana
Suppression Programs. This
initiative would prohibit the state from accepting federal funds for
anti-marijuana programs, such as the Marijuana Suppression Program and
the Campaign Against Marijuana Planting program. The state would not
realize any savings, however, since these programs are supported
entirely by federal funds.
·
Loss of Fines. The measure would result in
an unknown reduction in state and local revenues due to the elimination
of fines for marijuana offenders.
·
Destruction of Records. The measure would
result in potentially minor state costs and potentially significant
local costs related to the destruction of criminal records. Some of
these costs might be offset by the $10 fee specified by the measure.
Effect if Federal Law Were Changed or
Current Law Not Enforced. Given the federal government’s
response to Proposition 215, it appears likely that enforcement of
marijuana laws at the federal level will continue regardless of whether
this new initiative was enacted. In the unlikely event that these
federal laws were not enforced or were changed, there could be
additional fiscal impacts beyond those listed above if a commercial
industry in marijuana-related products was allowed to develop.
For example, the state could derive significant
additional revenue if the Legislature exercised its option under the
initiative to collect an excise tax of up to $10 per ounce on commercial
production of marijuana products for personal recreational or religious
use. If the Legislature acted accordingly, the state could also collect
unspecified licensing fees from licensed concessionaires of such
marijuana products to offset the cost of regulating such establishments,
and might also realize additional revenues from income and sales taxes
generated by commercial producers.
Summary of Fiscal Effects
We estimate that this measure would have the
following major fiscal effects:
·
Savings in the several tens of millions of dollars
annually to state and local governments, which would no longer incur the
costs of incarcerating and supervising certain marijuana offenders.
·
A potential increase of a few million dollars annually in
the cost of the state’s Drug Medi-Cal substance abuse treatment program.
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