Law Gone to Pot

by Cameron Scott

California's budget crisis has some lawmakers and activists eyeing an unlikely source of revenue: legalizing and taxing marijuana, which could bring state coffers about $1.4 billion.

With an Assembly bill sponsored by Tom Ammiano (D-San Francisco) moving toward a floor vote, and at least one ballot measure likely to face voters in November, marijuana could, in California, become as legal as alcohol this year. But that's only if the federal government doesn't enforce its prohibition on the drug, which was upheld by the U.S. Supreme Court in Gonzales v. Raich (545 U.S. 1 (2005)). Still, as established in City of Garden Grove v. Superior Court (157 Cal. App. 4th 355 (2007)), California law enforcement agencies must respect state law (in this case, the one authorizing compassionate use of marijuana).

For their part, California voters have long sought to decriminalize marijuana. In 2001 they expanded a 1975 law that made fines and treatment?rather than jail time?the penalty for possession of less than one ounce of the drug. Voters also backed the Compassionate Use Act of 1996 (Health & Safety Code § 11362.5), which makes it possible for Californians to obtain and use marijuana for medical purposes. SB 420 was intended to clarify that law in 2004, but since then the state has seen an increase in marijuana arrests, both in raw numbers and as a percentage of all drug-related arrests.

A Sonoma County public defender, Joseph Rogoway, who coauthored one 2010 ballot measure?the so-called California Cannabis Initiative (CCI)?says that he increasingly represents clients who "believe that they are following the law." Indeed, he adds, "Based on my reading of the applicable statutes and case law, most of these people are, in fact, following the law."

This confusion in marijuana regulations has given rise to a cottage industry of roughly 80 California attorneys who focus on civil and criminal marijuana cases. But many marijuana defense attorneys would be happy to move on to the next big thing if pot becomes legal in California. "I'd love to put myself out of business," says James J. Clark, a coauthor of CCI who practices out of San Francisco's Pier 5 Law Offices. Then what? "I would probably try to mitigate the effects of our other drug laws."

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