In November, Californians will have an opportunity to make marijuana legal. But a new state law is already doing everything but legalize it -- making possession of less than an ounce of pot no more serious than driving faster than the speed limit.
A bill signed Thursday by Gov. Arnold Schwarzenegger reduces the crime from a misdemeanor to an infraction, meaning that those caught smoking merely need to pay a $100 fine, won't have to appear in court and won't have a criminal record.
Ironically, the law undercuts a major argument in support of Proposition 19, the marijuana legalization measure on the Nov. 2 ballot -- that the state spends too much on marijuana enforcement and prosecutions. Many California district attorneys and judges supported the new law because they believe minor drug crimes cost too much to enforce, and clog the justice system.
Schwarzenegger agreed. Noting that California made possession the most minor of misdemeanors 35 years ago, he wrote that already "possession of less than an ounce of marijuana is an infraction in everything but name. The only difference is that because it is a misdemeanor, a criminal defendant is entitled to a jury trial and a defense attorney.
"In this time of drastic budget cuts, prosecutors, defense attorneys, law enforcement, and the courts cannot afford to expend limited resources prosecuting a crime that carries the same punishment as a traffic ticket," concluded the governor, who remains a fervent opponent of legalizing marijuana.
Those prosecution and court costs are a significant part of the savings Prop. 19's proponents have touted should the measure -- which would remove all criminal penalties for possession of less than an ounce of marijuana -- be approved by voters.
Despite the governor's statement, Prop. 19 campaign spokesman Dan Newman said the new law "reflects the broad and growing consensus that it's time to control and tax marijuana just like alcohol to generate billions for local communities."
Some say the proposition forced the governor's hand.
"The signing of this bill is certainly made possible and perhaps made necessary by the apparent popularity of Prop. 19 "... in the way that radical proposals sometimes make more moderate reforms not only possible but necessary," said Stephen Gutwillig, the Drug Policy Alliance's California director. "Obviously, Schwarzenegger understood this was more than just an administrative fix."
Regardless of which way voters decide on Prop. 19, California will now have some of the most lenient pot laws in the country -- but that is not new.
The state's Moscone Act, effective Jan. 1, 1976, provided that someone with less than an ounce of marijuana need not even be formally arrested or booked. The maximum penalty is a $100 fine, making it the only misdemeanor not punishable by jail time. One study estimated the state saved $1 billion in arrest, court, prison and parole costs in the first decade after that law took effect.
Still, authorities made more than 61,000 arrests for marijuana-related misdemeanors in 2008, the last year for which data is available.
Some California locales -- including Berkeley, Oakland, San Francisco, Santa Cruz, Santa Barbara, Santa Monica, West Hollywood and Mendocino County -- have passed ordinances in recent years to set marijuana enforcement as their police agencies' lowest priority. That means simple possession cases without any sales or cultivation are often largely ignored.
Prop 19 would go even further. Besides legalizing possession for adults, Prop. 19 also would let them grow their own marijuana in up to 25 square feet of space and would let cities and counties decide whether and how to allow, regulate and tax commercial production and sales.
A Field Poll conducted Sept. 14-21 and released last weekend found 49 percent of likely voters in California say they're inclined to vote for Prop. 19, while 42 percent are inclined to oppose it. A Public Policy Institute of California poll conducted Sept. 19-26 and released this week found 52 percent in favor and 41 percent opposed.
