NEWS: ACLU Letter to Attorney General Argues There Is No Basis for Challenging California's Proposition 19

WASHINGTON - October 25 - The American Civil Liberties Union and its three California affiliates today sent a letter to U.S. Attorney General Eric Holder and Gil Kerlikowske, Director of the Office of National Drug Control Policy (ONDCP), arguing that there would be no legal basis for the Department of Justice (DOJ) to sue to overturn Proposition 19 should it be approved next month by California voters, and urging the Justice Department to not change its current law enforcement focus on major criminal activity in favor of new enforcement activities against California marijuana users.

The letter asks Holder and Kerlikowske to stop threatening costly litigation and the deployment of federal drug police to arrest individuals who might use marijuana if the state enacts the proposition, which would allow adults 21 and older to possess and grow small amounts of marijuana for their personal use and allow cities and counties to regulate and tax commercial sales. The letter calls such rhetoric "unnecessarily alarmist" and says it does little to foster a balanced discussion of a legitimate policy issue.

"Proposition 19 would remove state criminal penalties for certain adult marijuana use," says the ACLU's letter. "The new law would not require anyone to do anything in violation of federal law. There would be no positive conflict."

News reports have indicated that federal officials have not ruled out following a recommendation by nine former Drug Enforcement Agency (DEA) chiefs to sue to overturn Proposition 19 under a wrongly-held belief that it would violate the Supremacy Clause of the U.S. Constitution. In a letter to the nine former DEA chiefs made public earlier this month, Holder said he will "vigorously enforce" federal laws against marijuana in California, even if Proposition 19 is approved.

The ACLU's letter argues that states do not have to march in lockstep with the federal government's prohibition of marijuana possession and that California can decide for itself whether it wishes to remove state criminal law penalties for adult marijuana use. An explicit clause of the Controlled Substances Act, passed by Congress in 1970, holds that preemption of state drug laws is limited to a narrow set of circumstances where there is a "positive conflict" between state and federal law "so that the two cannot consistently stand together."

The ACLU's letter also highlights the fact that African Americans and Latinos are disproportionately arrested for low-level marijuana possession in California and across the nation even though their usage rates are the same as or lower than those of whites.

"The ACLU took heart from Director Kerlikowske's acknowledgement that the 'war on drugs' has failed," states the ACLU's letter. "But instead of scaling back the rhetoric associated with that ineffective and out-of-date campaign, it appears the administration would resist California's modest attempt to begin dismantling one of the defining injustices of our failed drug policies: that the war on drugs has become a war on minorities."

A new report released last week shows that from 2006 to 2008, police in 25 of California's major cities arrested blacks at four to 12 times the rate of whites.

"The historical and racially disparate enforcement of marijuana laws is a primary reason why [the ACLU of Northern California, the ACLU of Southern California and the ACLU of San Diego and Imperial Counties] have endorsed Proposition 19," the ACLU's letter reads.

The ACLU's letter to Holder also questions why the federal government's response to the enactment of Proposition 19 should be any different than its approach to the existence in California and 13 other states of laws allowing the use of marijuana for medicinal purposes.

"We commend DOJ's instruction last year to U.S. attorneys that prosecuting medical marijuana patients who comply with state laws should not be a federal law enforcement priority," the ACLU's letter reads. "The very same standards should apply if Proposition 19 is enacted. Regardless of the federal government's disagreement with California's choice to amend state criminal law, it makes no more sense for the federal government to waste scarce resources policing low-level, non-violent marijuana offenses after Proposition 19 passes, than before."

Californians have every right to enact Proposition 19, the ACLU's letter asserts, in an effort to curtail the wasting of criminal justice resources on the policing of low-level adult marijuana offenses and to help end the selective enforcement of drug laws.

"This is about priorities," the ACLU's letter reads. "Given the state of the economy, record unemployment and foreclosure rates, and thousands of troops deployed abroad, should voters enact Proposition 19, we hope the federal government will re-evaluate its priorities and use scarce federal enforcement resources wisely."

Source: CommonDreams.org

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NEWS: California's next attorney general can't punt on marijuana

Steve Cooley and Kamala Harris appear reluctant to fully enforce Proposition 19 if it passes. No matter what happens on election day, drug policy is an issue California's next top law enforcement official must be ready to deal with.

Regardless of which candidate wins the race for California attorney general, voters expect that San Francisco Dist. Atty. Kamala Harris or Los Angeles County Dist. Atty. Steve Cooley will respect the outcome of the election gracefully.

But they appear reluctant to extend that respect to Proposition 19, which would legalize the private, adult use of limited amounts of marijuana statewide and allow local governments to regulate commercial production and retail distribution. At their debate last week at UC Davis, neither Harris nor Cooley would state whether they would, as attorney general, enforce and defend Proposition 19.

Democrat Harris was ambiguous regarding what her actions as attorney general might be: "I believe that if it were to pass, it would be incumbent on the attorney general to convene her top lawyers and the experts on constitutional law to do a full analysis of the constitutionality of that measure ... and what action, if any, should follow."

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Republican Cooley was more blunt: "I really am strongly opposed to Proposition 19 for many reasons. I would be inclined to advise that it is unconstitutional and preempted by federal law."

Given that the attorney general is sworn to uphold all of the laws of the state, not just the ones he or she supports, the candidates' responses were disconcerting. In both cases it appears that their personal biases against marijuana legalization could compromise their ability to objectively carry out their duties as attorney general.

Further, both candidates' statements exhibit extreme arrogance. On the one hand, both Harris and Cooley believe that voters should be empowered to choose the state's top law enforcement officer; but when it comes to amending the state's marijuana laws, Harris isn't sure that voters have the final word, and Cooley disregards them outright. Both candidates ought to know better; after all, voters pay for enforcing these criminal policies with their tax dollars.

Of course, such disregard for voter sentiment is nothing new. Former state Atty. Gen. Dan Lungren vehemently opposed Proposition 215, the 1996 initiative that legalized the physician-authorized use of marijuana, and he threatened to use the power of his office to oppose it. Fourteen years after Lungren's bluster, it is apparent that the law is here to stay irrespective of the verbal threats uttered by the state's former attorney general. One can expect history to repeat itself if voters endorse Proposition 19 on Nov. 2.

But even if the measure fails, there is a strong likelihood that California's next attorney general is going to have to face this issue head on. National surveys on marijuana laws show steadily increasing public support for legalization — from less than 20% in the late 1980s to just under half today. Support is even stronger on the West Coast, with nearly 60% of voters in this part of the country responding in a 2009 Zogby International poll that marijuana should be "taxed and legally regulated like alcohol." In other words, even if voters reject legalization this time around, they are more likely to support a similar measure in a future election.

Which ultimately brings up the question: If a government's legitimate use of state power is based on the consent of the governed, then at what point does marijuana prohibition — in particular the federal enforcement of prohibition — become illegitimate public policy? Ready or not, California's next attorney general needs to be able to answer that question objectively and definitively.

Source: Los Angeles Times