Tousaw: “It takes a very strained reading of [Prop 19] to conclude that it applies to medical cannabis at all”

We’ve been covering the “Stoners Against Legalization” blogs out there and taken even a bit of heat here at the Stash for my writing against the people questioning Prop 19 (“condescending” and “arrogant”, I’ve been called, among the nicer things.)  For that I make no apologies; I think the arguments that have been cooked up against Prop 19 by pot smokers largely fall into one of two categories: those who’d benefit from the status quo and naive anarchic idealists who rebel at the thought of any “tax and control”.  Forgive me if I get a little rude when people concoct slippery slopes and worst case scenario predictions to oppose freeing myself and millions of others from the “criminal” label.

For the 80% of California’s three million pot smokers who do not have Prop 215 recommendations (you know, the “criminals” in “We’re patients, not criminals!”), we are thrilled by Prop 19.  One ounce and a 25 square foot garden certainly seems better than zero ounces and a zero square foot garden.  No probable cause for harassment sounds a lot better than probable cause leading to a misdemeanor or felony conviction and lifelong “drug criminal” label.  We’re a little perturbed at the “I Gots Mine” crowd who mistakenly think Prop 19 will end their Prop 215 rights and are fighting to keep us “criminals” even one day longer after November 2nd.

Kirk Tousaw, writing in Cannabis Culture, examines this phenomenon, but in a much more polite Canadian manner than my own.  For the only cannabis consumer who can even consider voting no on Prop 19 has to be one who fears losing rights under Prop 215:

The ‘supersedes’ argument relies mainly on the use of the phrase “nothwithstanding any other provision of law” in certain sections. This is a fairly typical phrase used in law to mean “despite other already-existing laws”. It does not mean “all existing laws on this topic are null and void and this new set of laws totally replaces them.”

I went into it at length in a previous post in relation to Prop 19′s new section 11300 which legalizes possession, sharing, transport and cultivation of cannabis for personal consumption. My primary point was that the effect of Prop 19 will come from what Prop 19 does – not the use of “notwithstanding”.

Kirk also notes the inherent self-contradiction of Purpose 6, which calls for “easier, safer access for patients”:

If the anti-19 people are correct, this “purpose” of Prop 19 will be negated. It is hard to see how making access harder by restricting Prop 215 can be held to be one of the legislative intents of Prop 19 when the goal is “easier, safer access.”

Kirk also addresses the scare tactic that Prop 215 parents would be rousted from their homes for daring to medicate in the same “space” where a minor is “present”:

…this section simply sets out a range of activities that are not “personal consumption” and therefore are not made lawful by Prop 19. It does not specifically restrict any other activity nor does it make any other currently-lawful activity illegal. It is a modification to what is being legalized, not a restriction on what is already legal. Remember, this section of the statute begins by adding categories of lawful conduct, not restricting anything.

Now lets untangle it a bit. What has happened?

1. Possessing and consuming cannabis for medicine is already legal.
2. Cannabis for “personal consumption” has also become legal.
3. But “personal consumption” doesn’t include consuming in the presence of minors, public consumption, etc. so the category of newly-lawful conduct does not extend to consuming in the presence of minors, public consumption, etc.

The exemption relates to the category of things legalized by Prop 19, not the category of things that had already been legal. I believe that it takes a very strained reading of 11300 to conclude that it (a) applies to medical cannabis at all; and (b) applies to it in such a way as to restrict it to only the situations set out in Prop 19.

Perhaps another reason why this frustrates me is my experience with the Oregon Cannabis Tax Act in 2008.  As we proposed that initiative, medical marijuana patients were livid that the law to legalize would supersede all existing laws on marijuana.  ”That would kill the OMMA [Oregon Medical Marijuana Act]!” they complained.  Yes, it would, we responded, because it wouldn’t be necessary anymore because marijuana would be legal for everyone.

“But what if the courts find that all the parts that legalized marijuana for everyone are invalid, but kept the parts that said all other marijuana laws are null and void?!?”

Yes, I had medical marijuana activists tell me they were worried that an initiative to legalize marijuana that replaced all marijuana laws would be invalid, except the part that gets rid of OMMA, but somehow the courts would also maintain all the criminal laws that it replaced.  Somehow legalizing marijuana would get rid of only the medical marijuana law.

So it was re-drawn for 2010 with a very explicit protection of the OMMA, so people could sign up for it and pay the state $100 even though they wouldn’t need to.  The medical advocates decided to support a dispensary initiative instead.  Which is not a bad thing, but I really just wish we’d get on with legalization.  My hope is dispensaries pass and they help fund legalization in 2012.

Strike that.  My expectation is that dispensaries pass and they help fund legalization in 2012.