Critics of Prop. 19 range from skeptical to rabid and some of them
come from inside the movement
By John Geluardi
Oct. 7, 2010
In 1911, after years of scandal and high-profile corruption trials,
California voters overwhelmingly approved one of the most rigorous
ballot initiative laws in the country. The idea was to allow voters
to bypass state lawmakers when they were too timid, cowed, or corrupt
to act on the voters' behalf. Almost a century later, the process is
still relatively simple and accessible. Any group or individual can
write an initiative and submit it with a $200 fee to the state
attorney general's office. After the initiative's fiscal cost was
analyzed, the signature gathering began. If the authors didn't have
access to a large group of well-organized volunteers, signature
gatherers could be easily hired at a price. For about $1 million, a
professional company would send paid staffers to shopping malls,
commercial districts, and public transportation hubs to collect
roughly 440,000 signatures of registered voters required to qualify
the initiative for the California ballot. And if the initiative won
50 percent of the vote on Election Day, it became law.
That form of direct democracy has given California voters a powerful
tool to shape their state and influence others. For example,
Californians ignited a nationwide movement toward property tax relief
with the passage of Proposition 13 in 1978. Citizens have bypassed
the state legislature to make laws on tobacco tax, term limits,
casinos, wildlife protection, gay marriage and, of course, medical marijuana.
Oaksterdam University founder and dispensary owner Richard Lee took
the lead on legalization in 2009. He coauthored the legislation and
put up more than $800,000 of his own money to collect the qualifying
signatures. Lee's initiative was aimed at swing voters those who
supported medical cannabis, for example, but might not want a
dispensary in their neighborhood. If approved in November, the
Regulate, Control, and Tax Cannabis Act of 2010 Proposition 19
would allow anyone 21 or older to possess or transport up to an ounce
of cannabis. It would allow the taxation of the cultivation and
retail sales of cannabis. Any store that so chose could sell up to an
ounce, and it would be legal to cultivate as much cannabis as you
could grow in a 25-foot-square area.
The initiative would create new laws regarding marijuana use. It
would be illegal to smoke marijuana in public or in the presence of a
minor. Cities and counties could ban the sale of cannabis, though not
its possession. And existing prohibitions against the operation of
vehicles, boats, and aircraft while under the influence of marijuana
would remain in place. The new law would not replace Proposition 215.
Patients could still possess or cultivate marijuana according to
local limits. In Oakland, for example, a patient could grow 72 plants
indoors, but non-patients would be restricted to what they could fit
in a five-by-five area, or roughly 24 plants.
With the public's growing acceptance of cannabis, Lee decided 2010
was as good an election year as any when he decided to back the first
state legalization effort in California since the 1970s.
"We see a lot of things making it right for this time," Lee said.
"The budget crisis here in California, the violence in Mexico, the
economy continuing to decline, the polls all suggest that this may
be the time to do it." He may be right. Masterson & Wright, the
company that Lee hired to collect signatures, racked up more than
700,000 39 percent more than the required minimum. Proponents set a
goal of raising $10 million for the campaign, about five times more
than opponents were expecting to spend.
In another sign that the cannabis industry was taking a corporate
mentality, Lee hired campaign consultant Chris Lehane as a
strategist. Lehane had worked for mainstream Democrats like Bill
Clinton, John Kerry, and Gray Davis. But prominent dispensary owners,
cannabis attorneys and nonprofit advocacy groups were reluctant to
endorse the initiative. They criticized the way it was written, and
some pressured Lee to hold off until 2012, when more voters,
especially younger ones, would turn out to vote for president.
Ultimately, however, the industry rallied around the initiative. The
three major nonprofits that advocate for legalization of cannabis
were the first to come around. They were primarily concerned about
the timing, but once the petitions were certified they threw in their
The California initiative shifted attention away from lobbying
efforts in Washington. The Marijuana Policy Project (MPP), based in
Washington, D.C., focuses its lobbying efforts in the beltway, and
its political action committee has contributed to numerous federal
elections. But Aaron Houston, MPP's chief lobbyist, said the energy
for legalization is occurring at the state level. "We are becoming
more decentralized," he said. "The sheer volume of supporters
dictates a top-down strategy would not work at this point.
Decentralization is a critical component to tactical success. "Drug
Policy Alliance executive director Ethan Nadelmann was also a staunch
supporter of the California initiative. "Now it's time again for
California to lead the way in ending the follies of marijuana
prohibition in favor of a responsible policy of tax and regulation," he said.
NORML executive director Alan St. Pierre said his organization was
solidly behind the initiative. "We'll launch a major effort in which
we'll try to redirect every dollar out there to California to help
with the legalization effort this year," St. Pierre vowed.
But strong resistance to Lee's initiative endured, and much of it was
coming from close allies. One of the earliest critics was Steve
DeAngelo, the high-profile CEO of Oakland's Harborside Health Center
dispensary, which has been featured in dozens of national television,
radio, and print stories. With its upscale, bank-like interior,
Harborside had been held up as a model for community orientation,
professionalism and its work with local governments. It claimed to
have the widest selection of cannabis strains and was at the
forefront of product testing for contaminants.
DeAngelo has touted his history as a cannabis activist. He helped
organize the Proposition 59 campaign in 1998, which legalized medical
cannabis in Washington, DC, and he is a cofounder and charter member
of the ASA. And despite his long braids, trademark fedora and
latter-day-hippie appearance, DeAngelo is an astute businessman. In
1991, he founded Ecolution, which sells hemp products to retail
stores throughout the United States and in 21 other countries. In
2006 he opened Harborside, which he claims has 48,000 members and
serves roughly 800 people a day.
Offering its members free appointments with an on-site neuropath,
acupuncturist and chiropractor, Harborside grosses about $20 million
a year. The dispensary pays $2 million annually in state sales tax
and another $360,000 for Oakland's local dispensary levy. DeAngelo
and his partner, Dave Wedding Dress, expanded their dispensary
operation to San Jose in 2010.
DeAngelo was initially outspoken in his opposition to Lee's
legalization initiative. At the 2009 NORML convention in San
Francisco, he denounced the legalization effort as a reckless
flirtation that could severely damage the entire medical cannabis
industry. After speaking with neighbors, police, and city officials,
DeAngelo said he concluded they were opposed to legalization.
"Their discomfort springs from the lack of any positive image of what
legal cannabis distribution would look like," he said. Californians
envisioned "armed dealers setting up shop and slinging weed on
corners of their suburban neighborhoods." They feared their children
would be brainwashed by "glossy ads for reefer in the style of Anheuser-Busch."
To support his position, DeAngelo quoted a Fortune magazine article
in which writer Roger Parloff advocated a slow approach to
legalization. Parloff argued the entire cannabis industry was at risk
if California's dispensaries failed. "If [proponents] succeed,
they'll convince the fence sitter and lead the way to a nationwide
"If they fail, the backlash will be savage," DeAngelo read from the
article. "If communities cannot adequately regulate the dispensaries,
they'll descend into unsightly, youth-seducing, crime-ridden
playgrounds for gang-bangers, and this flirtation with legalization
will conclude the way the last one did: with a swift and merciless
swing of the pendulum."
Although most California communities have been managing dispensaries
without such hellish consequences, DeAngelo told the gathering that
Parloff's speculations were valid. "As one of those with his head on
the chopping block, I am very concerned about that pendulum," he
said. "We must embrace the not-for-profit, community-service model of
cannabis distribution. When you boil down the fear of our 25 percent
of swing voters, I would submit that it likely comes down to them not
wanting us as a society to make the same mistakes with cannabis that
we made with alcohol and tobacco: glamorization, excessive
advertising driving inappropriate use, profit-making corporations
enticing their children into lifetimes of dependency."
Instead, DeAngelo recommended waiting five to six years while the
medical cannabis industry took hold in more states and established a
solid track record. "Across the nation, thousands of not-for-profit,
community-service dispensaries have created a positive model of
cannabis distribution," he told his audience. He also suggested the
legalization would occur organically. "At dispensaries all across the
country, we will stop asking for medical cannabis identification and
simply ask for adult identification. We will flip the switch at the
dispensary door, and all adult Americans will have what hundreds of
thousands of Californians now have free, safe, and affordable
access to cannabis." But once the California Attorney General
qualified the initiative for the 2010 state ballot, DeAngelo
reluctantly offered his support to the campaign and even promised to
contribute $1,000 to the effort.
Other allies were also grumbling openly about the initiative. One was
attorney Robert Raich, legal counsel to California's earliest
dispensary owners. Raich's credentials are extensive. He has lectured
widely on the regulation of medical cannabis and was a member of the
California Attorney General's Medical Marijuana Task Force, which
crafted much of the language for SB 420. He also worked on the only
two medical cannabis cases argued before the Supreme Court: United
States v. Oakland Cannabis Buyers Cooperative in 2001 and Gonzalez v.
Raich (no relation) in 2005. In addition, Raich had taught medical
cannabis awareness classes to Oakland Police Department cadets.
Although Raich taught at Oaksterdam University, he disagreed with
Richard Lee when it came to Control and Tax 2010. Raich was wary of
the new restrictions the initiative would create, such as prohibiting
use in front of minors or in public places, outlawing sales to anyone
between the ages of 18 and 20, and restricting growing space to 25
square feet, which Raich said was ridiculously inadequate.
Raich asked Lee to make changes to the initiative, but Lee refused.
Raich suspected campaign consultants had given Lee poor advice and
convinced him he needed to curry the votes of soccer moms, who
theoretically feel more comfortable voting for tight restrictions.
"In fact, when I look through the eyes of someone who is unfamiliar
with cannabis, I see so many restrictions that we might actually lose
votes. The voter is going to say, 'This guy is a proponent who knows
more about weed than anybody, and he wants so many restrictions that
it must really be a dangerous drug.'"
Raich said it was foolish to make so many concessions to a perceived
public resistance to legalization. Voters are typically driven by
emotion rather than logic. Most people don't read the ballot text of
a new law in detail, Raich said. "This initiative will be decided
based on two words, 'legalize' and 'marijuana,' yes or no? That's all
people really care about, all they'll know about, all they want to know about."
Often called the spiritual father of medical marijuana movement,
Dennis Peron coauthored Proposition 215. He said Lee's initiative was
so restrictive it was nothing less than a declaration of war. Peron
has always favored a community-based vision of medical marijuana in
which the drug was dispensed at affordable prices with as little
commerce as possible. He bristled at the thought of the medical
marijuana movement turning into a business driven by the bottom line.
"Taxes?" he erupted in a San Francisco café in December 2009. "We
shouldn't pay taxes. The government should pay us reparations for all
the lives they've ruined."
Peron even recorded a video denouncing the initiative and posted it
on YouTube. In it, he took aim at what he called the excessive
restrictions in Lee's initiative. "To deny 18-year-olds is wrong.
They can go buy cigarettes, they can go kill for our country…" Peron
said in his rapid-fire style. "I started smoking when I was 18, and
it saved my life. Also, a five-by-five area is too small. We need the
Peron criticized Lee for leading the medical marijuana movement into
the cold world of finance. "We've given too much power to one man, to
a person who has no sense of destiny, no sense of what it is to have
power. He has money, and he equates that money with power," Peron
said. "My power came from my heart and my friends. This is a movement
about people, not money."
Peron said it was awkward to speak out against the initiative, but he
felt he had no choice. "I don't like war, and I hate civil war. War
with my friends is wrong," Peron said into the camera. "But I'm
prepared for war. To sit back and do nothing would be wrong."
Although Lee described Peron at a 2008 NORML conference as one of his
heroes and the godfather of the medical marijuana industry, the split
between the two men over the initiative was such that Peron stopped
teaching at Oaksterdam.
Don Duncan, the California director of Americans for Safe Access,
declined to take a position on the initiative because the
organization's charter prevented it from endorsing political
campaigns. But he said medical cannabis patients must be included in
the dialog as more states considered legalizing adult use. "Medical
marijuana is not a means to an end; it's a means unto itself. What's
not useful is for people to pretend to be medical marijuana advocates
when they have a different agenda in mind. There's no integrity to
that," Duncan said. "What could happen is it could be hurtful to our
cause because it will be seen as a bait and switch. Advocacy for
medical use and patients' rights should not be seen as a
stalking-horse. It's important that activists identify which side
they're on and stick to their message."
Lee brushed off the criticisms. As in other rights movements, Lee
said, many see no need to keep pushing once they become comfortable.
"I've seen a lot of people in the industry who have a monopoly.
They're making millions of dollars, and they see legalization as a
threat," Lee said. "There's a comfort level with the way things are.
They're making lots of money; they have lots of good bud, so why rock
In the meanwhile, though, a coalition of law enforcement agencies
planned to challenge Lee's initiative, and their testimony hinted at
their larger strategy. They will likely argue legalization would have
a devastating effect on the state's public health and safety. There
would be a significant rise in organized crime, violence, cancer,
addiction, dropout rates and traffic deaths. Although those arguments
were likely to carry weight, they seemed to ignore the fact that
marijuana has been widely used in the state for decades, and they had
failed to produce statistics to back up their claims. For example,
there were 1,489 alcohol-related traffic fatalities in California in
2007, according to the Department of Motor Vehicles (DMV). But the
DMV kept no such data on marijuana-related traffic fatalities.
Instead, marijuana was included under the general heading of drug
fatalities, which numbered 749 that year.
There are conflicting studies on marijuana as a major health threat.
For example, the National Institutes of Health's 2006 study claimed
there was next to no risk of cancer, no matter how much or how long
marijuana was smoked. But a 2008 study by New Zealand scientists
determined that smoking one joint was equivalent to smoking 20
cigarettes; they warned of a pending "epidemic" of lung cancer.
Marijuana smoke is on California's list of chemicals known to the
state to cause cancer or reproductive toxicity, but marijuana itself
is not. Although most users prefer to smoke marijuana, it can also be
ingested through edible goods and vaporizers, which pose no risk to
the lungs. Neither marijuana nor marijuana smoke is on the U.S.
Department of Public Health and Human Services list of carcinogens.
And despite decades of heavy use in the United States, there is no
official estimate of health costs associated with marijuana.
Even so, law enforcement agencies remain convinced that marijuana is
dangerous. Tall, ruggedly handsome, and easygoing, El Cerrito Police
Chief Scott Kirkland was on the board of California Police Chiefs
Association and chaired its Medical Marijuana Task Force. Standing in
the capitol building hallway, Kirkland broadened his smile, shook his
head again, and had only one comment: "Damn politics." Then he walked
away with a group of fellow police chiefs.
Kirkland's primary reason for opposing legalization was its effect on
children and youth. There was already too much marijuana in schools,
and since medical marijuana had become legal, the situation had
deteriorated. If adult use were legalized, he feared it would grow
into an even bigger problem. In California, high school students who
turned 18 before graduation could obtain medical cannabis
recommendations, and many had become marijuana mules for their
underage classmates. "Some of these students turn into de facto high
school drug dealers not because they're prone to it, but just because
they turn 18," Kirkland said. He had received calls from parents who
found a bag of weed in the family car after their teenager had been
driving it. "The parents want us to come and arrest them, or at least
give their kid a scare, and I have to tell them I can't do it because
their son or daughter has a medical marijuana recommendation, and
it's legal for them to have marijuana," Kirkland said.
Kirkland was worried about medical reports that marijuana use could
slow brain development, particularly among male teenagers. Kirkland
said he was no expert, but he suspected a correlation between the
higher THC content in marijuana and higher rates of learning
disabilities among American teenagers. And like many marijuana
activists, he was frustrated the Controlled Substances Act had
stymied federal spending on research because marijuana was a Schedule
I narcotic. He particularly wanted to see more medical research into
marijuana's effect on children. "I could give a rat's ass about the
50-year-old guy who wants to smoke a joint in his house," Kirkland
said. "If that's how he gets relief from societal woes, so be it."
Kirkland also criticized the overall tenor of the media coverage,
which he felt favored the cannabis industry. "I'll talk to a reporter
for up to an hour, and when the stories come out, I'll have one
sentence, and Richard Lee will have three paragraphs," Kirkland said.
In 2009, Kirkland sent an editorial to the Sacramento Bee, one of the
state's most respected newspapers, after it ran a pro-legalization
piece by Aaron Smith, the policy director for the Marijuana Policy
Project, who cited Gettman's tax revenue projections. Kirkland
respectfully challenged Smith's assertions, but the Bee declined to
run his piece, and it finally appeared in the lower-circulation
Stanislaus County Insider.
Despite these challenges, Kirkland said he was confident that voters
would see through campaign rhetoric and realize that legalizing yet
another mind-altering drug was a bad idea. But influencing voters is
a difficult task. It requires an understanding of public opinion and
its vagaries, an ability to communicate strategically, and a deep
commitment to the issue. Kirkland found those qualities in longtime
Sacramento lobbyist John Lovell, a former troubleshooter for Gallo Winery.
Lovell's disheveled, avuncular image belies his reputation as a
shrewd political operator. In 2008 he managed the campaign to defeat
Proposition 5, which would have required the state to create more
drug rehabilitation programs and limited the court's authority to
sentence nonviolent drug offenders to prison.
Initially, Proposition 5 had a great deal of momentum. Early polling
showed voters favored the proposition two to one, and wealthy
pro-legalization tycoons contributed generously, including $1.4
million each from international financier George Soros and Jacob
Goldfield, the former chief investment of Soros Fund Management.
Proponents ultimately outspent the opposition $7.6 million to $2.9
million. But that was before Lovell went to work. He landed
endorsements from U.S. senators Dianne Feinstein and Barbara Boxer as
well as California attorney general Jerry Brown, actor Martin Sheen,
and farm worker icon Dolores Huerta. Lovell's campaign hammered home
the view that the initiative was a "get-out-of-jail-free card" for
drug offenders. "All defendants had to do was claim drug addiction,
and the prosecutor would have the burden of proving otherwise. Voters
didn't like that," Lovell said. "We won the election with 59 percent
of voters saying no compared to 40 percent saying yes. It was a
Two years after the defeat of Proposition 5, law enforcement again
turned to Lovell. Several police associations, including the
California Police Chiefs Association and the California Narcotics
Officers Association, were working with Lovell to shape their
campaign against 19. Lovell said he was confident the initiative
would fail. There were a number of flaws in its text that he said
would be relatively easy to exploit. "I think the authors made the
classic blunder of having too many proponents in the room when they
wrote it, and there was no one to thoroughly challenge some of its provisions."
Lovell said the initiative gave a false impression of how much tax
revenue it would raise and allowed cities and counties to regulate
the cannabis industry as each saw fit. "It will create 500 marijuana
nations, and it will be one big race to the bottom," Lovell said.
"Mexican and Asian drug cartels won't disappear; they'll just set up
shop in friendly cities and towns and continue to operate with
impunity." The rules would change every time law enforcement
officials crossed a city or county line in what Lovell described as a
"confusing crazy quilt of laws, regulations, and policies." The
initiative would also create problems for businesses, which couldn't
fire anyone for testing positive for marijuana. Instead, employers
would have to demonstrate that the worker was impaired. Because
federal contracts include a drug-free clause, California businesses
could also miss out on lucrative opportunities.
Both campaigns were planning no-holds-barred strategies. Polls
favored legalization, but that was no guarantee. One thing was
certain: The campaign would be watched more closely than any other
state initiative in the country. Its passage would send a clear
signal to government officials and politicians throughout the country.
The initiative's success would also mean a great deal of change for
the medical marijuana industry. Smaller dispensaries, which have had
the market entirely to themselves for years, could face stiff
competition from well-funded and business-savvy investors.
Unencumbered by Proposition 215's not-for-profit requirements, they
could capture market share by undercutting prices, launching
aggressive advertising campaigns or using political influence to
squeeze small operators out of the marketplace. Franchises could
eventually spread to Oregon, Washington and Nevada, which were also
developing campaigns to legalize adult use.
Even if the initiative failed, the marijuana industry would continue
to grow at a rapid clip. In Colorado the industry was quickly
catching up to California in the number of dispensaries, political
sophistication, and support infrastructure. Maine, Rhode Island, New
Mexico and Montana were developing successful dispensary models.
Insiders joked about the rise of "Starbuds" a fictional
corporate-styled dispensary chain with identical interior designs,
uniformed budtenders, and standardized customer greetings but that
reality might not be far off.
No matter what the vehicle legalization or the continued growth of
the medical marijuana industry the marijuana business would
continue to change rapidly. And in the misty, forested hills of
northern California, longtime marijuana growing communities were
watching the new developments anxiously and wondering whether their
way of life would soon be finished.