Prop. 64: Not the Legalization You’re Expecting

by Dragonfly de la Luz

With just days until one of the most controversial elections in history, California voters are faced with another initiative to legalize recreational pot. The media often incorrectly reports that Prop. 64 creates “full legalization.” It does not. Prop. 64 is a flawed initiative that calls for jail time for a host of harmless offenses, making being pro-legalization and pro-Prop. 64 two different things entirely.

Several weeks ago, I published an article titled “12 Reasons to Vote KNOW on Prop. 64” on a blog I set up for the express purpose of informing voters of some of the misconceptions, potential pitfalls, and unintended consequences of the initiative that the average voter is likely unaware of. More recently, a drastically redacted version of that article was republished by Connection Magazine, with substantial edits that fundamentally changed or misrepresented many of those arguments. Certain people took to rebutting it, without realizing they were “rebutting” the wrong article. As a result, my reasons to “vote know” remain completely unaddressed by Prop. 64 supporters – and completely valid.



Emerald Cup

In fact, on Oct. 30, Mike McGuire (D-Healdsburg), a pro-cannabis, pro-legalization Democrat and one of the authors of the new law to regulate the state’s medical cannabis industry, announced that he will vote against Prop. 64 – and the reasons he cites are both concerns that my article brings up: because it would “pour hundreds of millions of dollars into a state fund, but includes no direct revenue stream to local government,” and because it would allow mega-grows of unlimited size after five years.

“That would ‘blow the lid off’ protections for the small, family pot farmers who make up the backbone of the North Coast industry, McGuire said,” according the Press Democrat.

Countless people are hedging their votes on the misconception that some of the anticipated taxes would go toward building schools, as is the case in Colorado, or to cash-strapped local governments, as is happening in Washington, so it seems important to point out that this would not be the case.i And this component is not likely to be “fixed” by future legislation. If Prop. 64 passes, it will give the governor and his appointees power over potentially billions of dollars of tax revenue. That is not the kind of power any elected officials are likely to just give back. It is highly unlikely that any bill attempting to redirect tax monies would ever make it off the legislative floor.

From a social justice standpoint, Prop. 64 also leaves much to be desired. Despite the rhetoric that the initiative would help those who have been unfairly targeted by the drug war (which, ironically, the initiative would perpetuate by leaving all cannabis laws except simple possession on the books, and by creating commercial regulatory hoops that most would fall short of jumping through), Prop. 64 disproportionately targets low-income communities with its three-strikes provision. Historically, these provisions are always selectively enforced, because who is likely to get arrested for the same offense multiple times? People who live in heavily-policed neighborhoods. A third offense in almost any category – transporting, selling any amount, and even sharing or gifting cannabis for adults over 21 who share with other adults under 21 – carries a prison sentence of up to 4 years.ii

It is no secret that most people are not exactly fans of Prop. 64. Even Dale Gieringer, Director of Cal NORML, concedes that “[i]t’s not the best initiative ever written” and “it has some problems.” But many have reported that they plan to hold their noses and vote yes anyway, for the sole reason that they believe Prop. 64 will release pot offenders from prison. While, on the surface, this appears to be an attractive feature of the initiative, it does not guarantee that anyone will be released. The text says:

(a) A person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that Act been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing or dismissal….

But the initiative also says:
(k) Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of the Control, Regulate and Tax Adult Use of Marijuana Act.

And that vague wording leaves a lot of unanswered questions. While it is clear which cases would fall within the purview of the initiative – possessing an ounce or less and cultivating six plants or less certainly would, but there is literally no one behind bars for simple possession since it’s already not an arrestable offense, and there is likely no one serving time for minor cultivation, either – it is not so clear which cases would fall outside the purview of Prop. 64.

Suppose someone was convicted of growing a few dozen plants, but with aggravating factors like water diversion, pesticide run-off, or child endangerment? Surely, that wouldn’t fall under the purview of the initiative. How about someone who was convicted of intent to sell with an associated conviction of possession of a firearm? Or someone who was convicted of transporting, but also evading police?

The reality is, prosecutors almost always find aggravating charges to apply; rarely is a conviction as cut-and-dried as simply “cultivation” or “intent to sell.” Can a judge determine that a more complex case, one with aggravating factors, falls outside the purview of Prop. 64, and is thus ineligible for resentencing? It would seem so, but I’m not an attorney; I don’t have the answer, I’m just posing the question.

Although exactly who would get released from jail under Prop. 64 remains speculation, one fact that can’t be ignored is that almost no one is serving time in California for cannabis. According to the the California Department of Corrections and Rehabilitation, only 3/10 of 1 percent are in prison for any cannabis-related offense. In cold, hard numbers, that amounts to 285 people. That’s not a typo. Proponents have been trying to sell Prop. 64 on the basis that it would let thousands, if not millions, of pot prisoners go free, but facts are facts: As of October 2015, there are only 285 people in the entire state of California serving time for any pot-related offense.



While, of course, the freedom of every life is valuable and worth fighting for, it is clear now that there are far more people who are free today that would face incarceration under Prop. 64 than those who would be released under the initiative.

Because of the new regulations Prop. 64 imposes, an estimated 2 million medical cannabis patients could become criminals virtually overnight for activity that is currently allowed under state law. So, should we vote for a severely flawed initiative on the hope that some of those 285 prisoners might be freed, or vote instead to save 2 million people from ever having to spend a day in jail over a plant? If going from 285 prisoners to potentially 2 million isn’t a step backwards for our clearly progressive state, then I don’t know what it is. For anyone who was considering a yes vote for the purpose of keeping people out of jail, this should be an easy decision to make.

Supporters insist Prop. 64 creates no new crimes, but the text of the initiative proves otherwise.

34016 (relating to commercial activity)
(a)(2) Inspections may be at any place at which marijuana or marijuana products are sold to purchasers, cultivated, or stored, or at any site where evidence of activities involving evasion of tax may be discovered. (3)(b) Any person who fails or refuses to allow an inspection shall be subject to a misdemeanor. Each offense shall be punished by a fine not to exceed five thousand dollars ($5,000), or imprisonment not exceeding one year in a county jail, or both the fine and imprisonment.”

Clearly this constitutes a new misdemeanor, as it is for a law that is currently not on the books. That goes for the three misdemeanors that follow, as well:

(a) Any person required to obtain a permit who engages in business as a cultivator, dispensary, retailer, microbusiness or nonprofit pursuant to Chapter 3.5 of Division 8 of the Business and Professions Code or Division 10 of the Business and Professions Code without a permit or after a permit has been canceled, suspended, or revoked, and each officer of any corporation which so engages in business, is guilty of a misdemeanor.

(b) Any person who fails or refuses to allow an inspection shall be subject to a misdemeanor. Each offense shall be punished by a fine not to exceed five thousand dollars ($5,000), or imprisonment not exceeding one year in a county jail, or both the fine and imprisonment.

(d) Any person who renders a false or fraudulent report is guilty of a misdemeanor and subject to a fine not to exceed one thousand dollars ($1,000) for each offense.

Furthermore, Prop. 64 creates harsher penalties for sharing cannabis with adults under 21 than exist today. Currently, sharing pot with an adult under 21 is a misdemeanor for those 21 and over, punishable by a mere $100 fine. Under Prop. 64, however an adult over 21 who shares cannabis with another adult under 21 would face an infraction, true – but punishable by 6 months in jail and/or a $500 fine.

Finally, it is not incongruous to be ideologically for legalization but opposed to Prop. 64’s poorly-worded attempt to legalize. In fact, given the long list of potential unknowns and unintended consequences, it is smart, reasonable, and sensible. Especially in light of the fact that misdemeanor cannabis arrests are down 93 percent since California downgraded possession of one ounce from a misdemeanor to an infraction in 2011, and even felony cannabis arrests dropped a dramatic 33.3 percent last year due to the passage of Prop. 47, the sense of urgency being propagated by supporters of Prop. 64 is clearly unfounded, if not outright deceptive.

Because a recreational cannabis industry would make some people very rich, voting in this initiative would be extremely difficult to undo. We are already well on our way to ending prohibition in California – no convoluted recreational initiative necessary. If anything, our sense of urgency ought to be in defeating Prop. 64 before it’s too late.

For more on Prop. 64’s unintended consequences, visit