Prop. 207, an initiative to legalize weed, contains significant overreaches
Opinion: Criminal penalties for marijuana use should be eliminated.
But the self-dealing in Prop. 207 is a lot to swallow.
But the self-dealing in Prop. 207 is a lot to swallow.
By Robert Robb Arizona Republic September 20, 2020
Proposition 207, which would legalize recreational marijuana, constitutes a significant overreach in two respects.
Let’s begin, however, with first principles: The use of marijuana should not be a criminal offense.
In a polity based upon individual liberty, the threshold for depriving someone of liberty through incarceration should be very high. Getting high on marijuana doesn’t clear the hurdle.
Criminal penalties should be eliminated
Prosecutors, in Arizona and elsewhere, are the most consequential advocates of retaining criminal penalties for marijuana use. They make a convoluted argument.
Virtually no one is actually prosecuted and jailed for marijuana use, they maintain. But the threat of being tossed in the hoosegow provides a prod for those caught using weed to get drug treatment in one of the various diversion programs that exist.
This, however, is a misuse of the criminal justice system. The purpose of criminal law should be to deter and punish proscribed behavior that someone inflicts on other people. In a polity based upon individual liberty, a purpose of criminal law shouldn’t be to induce us to do things that are good for us, and deprive us of our liberty if we don’t.
Prop. 207 overrides state and local laws that impose criminal penalties for cultivation, possession and use of small quantities of marijuana. And provides a process to expunge previous convictions for the same.
If these were the only provisions of Prop. 207, I would be an enthusiastic supporter. But it does much more.
Overreach 1: It creates a commerical industry
The first significant overreach is that, in addition to basically erasing state criminal penalties for small quantities, it establishes the infrastructure for a commercial recreational marijuana industry.
Since marijuana remains illegal under federal law, this is premature.
The state would be licensing commercial enterprises whose operations violate federal law. Prop. 207 creates a legal no-man’s land, which undermines the rule of law and respect for it.
At present, the federal government is exercising forbearance about enforcing federal law against marijuana enterprises, medical and recreational, acting in accordance with state laws. And forbearance against their customers.
It is unlikely that the forbearance will be reversed, but it is a possibility. Regardless, the state should not be conscripted into facilitating a violation of federal law. That’s just not right.
Removing state criminal penalties for small quantities serves the liberty and social justice interests at stake. The feds don’t have the resources, or the interest, in going after small users.
There’s a growing momentum to remove the federal criminal penalties associated with marijuana. The establishment of a state-sanctioned commercial recreational industry should follow, not precede, that event.
Overreach 2: There is blatant self-dealing
The second significant overreaching is the blatant self-dealing by those funding Prop. 207, which is overwhelmingly those currently in the medical marijuana business.
Prop. 207 restricts the number of recreational marijuana licenses to around 130. Which just happens to be about the number of current medical marijuana dispensaries. Who, under Prop. 207, just happen to get first dibs on recreational marijuana licenses.
A small number of additional licenses are reserved for “social equity” owners, who are supposed to come from communities disproportionately affected by the enforcement of previous marijuana laws.
Despite the virtue-signaling façade, the clear purpose, and effect, of Prop. 207 is to give existing medical marijuana operators an oligopoly in the legal recreational marijuana market.
The self-dealing doesn’t stop there. Currently, medical marijuana enterprises have to be nonprofits. That hasn’t kept big bucks from being made. But there are restrictions on how proceeds can be used.
Under Prop. 207, recreational marijuana businesses can take for-profit corporate structures. Moreover, if they get a dual license, allowing recreational and medical marijuana operations at the same site, the medical marijuana side of the business can also become for-profit.
Now, I’m not opposed to for-profit operations in whatever legal marijuana businesses are authorized. But the self-dealing that lies at the heart of Prop. 207 – the creation of an oligopoly for the funders and increasing their ability to cash in and out – really stinks.
That’s an awful lot to swallow to get the state criminal penalties for marijuana use abolished.
Reach Robb at [email protected].