California’s 2010 Law Changing the Crime Classification for Petty Marijuana Possession Reduced Workload for District Attorneys and Courts

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Thanksgiving dinner at the Dayton household featured relatives and friends from San Francisco and Berkeley who are active in leftist causes and jubilant about the election results. Meanwhile, I was bemoaning the lack of present and future market demand in California for policy analysts and political consultants who advocate for minimalist government.

From their perspective, there was a solution: work with a campaign to convince a majority of California voters to legalize marijuana, as voters did in Colorado and Washington in the November 6 election.

Factions on both the Left and Right could agree that this step would give Californians more personal freedom from intrusive government and reduce the costs of law enforcement, courts, and prison, thus saving money for taxpayers and allowing the government to focus limited resources on more serious threats to an orderly, functioning society. The product could also be taxed as a source of revenue. In addition, such a campaign might introduce concepts of economic and personal freedom to California citizens who don’t often respond to the typical message and delivery from the Right. See the November 14, 2012 Cato Institute article A Time for Choosing: The GOP and the Marijuana Initiatives for this kind of thinking.

I was reminded of the Thanksgiving dinner advice when I saw tweets this morning from Scott Lewis, a reporter for the Voice of San Diego web news site. He wrote that the San Diego Association of Governments (SANDAG) reported 6,783 misdemeanor marijuana arrests in San Diego County in 2010, but only 703 in 2011. That’s a 90% drop in arrests. (The San Diego Union-Tribune has now reported this in the November 28, 2012 article Marijuana Arrests Plummet 90% Countywide.)

I immediately knew the reason for the drop, but people in San Diego replied with tweets asking if this was because of lack of enforcement, a drop in use, or the presence of medical marijuana dispensaries. All of these guesses were wrong but understandable, because Californians have dramatically inaccurate perceptions about the state’s marijuana laws.

As the reporter subsequently confirmed with another tweet, it’s because of an obscure change in state law in 2010, explained below. I tweeted a question on whether or not anyone had compiled the statewide statistics on misdemeanor marijuana arrests and/or estimated the savings for county district attorneys and the judicial branch. I’m looking forward to an answer.

Petty Marijuana Possession in California Ceased to Be a Felony in 1975, and It Ceased to Be a Misdemeanor in 2010

June 26, 2001 analysis of Senate Bill 791 for the Assembly Committee on Public Safety corrected a common misperception among Californians that hundreds of thousands of people are in prison because they were caught with a small amount of marijuana:

…possession of less than one ounce of marijuana was essentially decriminalized in 1975 with the passage of the Moscone Act. Up until that time, possession of any amount of marijuana was a felony, punishable by up to ten years in prison. In 1974, felony marijuana arrests peaked at nearly 100,000 (99,597), representing about one-fourth (24.75 percent) of the felony arrests in the state and over two-thirds (69.21 percent) of the state’s felony drug arrests.

Even though possession of one ounce (28.5 grams) or less of marijuana was no longer an offense for jail or prison (outside of some exceptions that continue today), the violation remained a misdemeanor to be addressed in trial courts. It was claimed that the misdemeanor classification was costly and absurd, because “there exists no disincentive for the accused to drain the resources of the state and the courts with a lengthy trial” that would simply result in a $100 fine if a judge or jury found the defendant to be guilty.

Few Californians know that in the waning days of his administration, Governor Arnold Schwarzenegger signed Senate Bill 1449, introduced by State Senator Mark Leno (D-San Francisco), which changed the classification of crime for possessing one ounce (28.5 grams) or less of marijuana from a criminal misdemeanor to a civil infraction that simply triggers a $100 fine. (To put this amount in perspective, California drivers are fined between $400 and $500 when photographed running a red light.)

At that time, California voters were about to decide on a statewide marijuana legalization ballot measure, Proposition 19, called the “Regulate, Control and Tax Cannabis Act of 2010.” Opponents of Proposition 19 thought Senate Bill 1449 could blunt voter support for Proposition 19. It did lose in the end, 53.5% to 46.5%.

Theories abound as to why a majority of voters rejected Proposition 19, with one being that some voters thought Senate Bill 1449 was acceptable but full-fledged legalization was too extreme. Another reasonable guess is that some voters agreed with the arguments of business groups and news organizations that Proposition 19 was poorly written and would undermine company drug policies, and it would even give people flexibility to drive under the influence of marijuana. (My former employer, Associated Builders and Contractors (ABC) of California, opposed Proposition 19 because it did not want construction workers on dangerous job sites to use Proposition 19 as a basis to evade company drug policies.)

Converting Petty Marijuana Possession from a Misdemeanor to an Infraction

Senate Bill 1449 was promoted as a way for the State of California to reduce the expenditures of the judicial branch by eliminating the involvement of trial courts in petty marijuana possession cases. The bill analysis for SB 1449 noted that “the number of misdemeanor marijuana possession arrests have surged in recent years, reaching 61,388 in 2008.”

According to an April 21, 2010 analysis of Senate Bill 1449 for the Senate Rules Committee and a June 22, 2010 analysis of Senate Bill 1449 for the Assembly Committee on Public Safety, supporters of the bill included the American Civil Liberties Union, the California Attorneys for Criminal Justice, the California District Attorneys Association, the National Organization for the Reform of Marijuana Laws – California, the District Attorney of San Diego, the Drug Policy Alliance, the Friends Committee on Legislation of California, and most significantly, the Judicial Council of California. Opponents listed in the April 21 analysis were the California Narcotics Officers Association, the California Peace Officers Association, and the California Police Chiefs Association. No opponents of SB 1449 were listed in the June 22 analysis.

A handful of Democrats voted against Senate Bill 1449. Two Republicans voted for it: Assemblyman Anthony Adams, who was not running again after supporting a budget deal in 2009 that raised taxes, and Assemblyman Chris Norby, a former Orange County supervisor whose voting record reflected a libertarian philosophy.

After being the lone champion in the state legislature of proposals unpopular with the Establishment – such as eliminating redevelopment agencies – Norby was defeated for re-election in November 2012 by a Democrat supported by every organization in Sacramento that feeds off the government. In Norby’s farewell statement issued today (November 28, 2012) and published on the OC Politics Blog as Verbatim: Chris Norby’s Goodbye, he wrote the following about his work on marijuana laws:

As for marijuana, I was happy to provide bipartisan support to legalize the growing of industrial hemp, and for more rational laws in dealing with its recreational use. The War on Drugs has become a war on people – especially poor people. It costs billions in incarceration and in broken lives of those whose only crime was ingesting a substance into their own bodies. Is this a criminal issue or health issue? Consensual, non-violent adult activity should not be subject to our costly criminal justice system or militarize our relations with other countries.

Republican leaders love to blast the over-intrusive “nanny state,” yet for cultural reasons most shy away from advocating common sense drug laws. Some have not shied away: influential columnists William F. Buckley and George Will, Reps. Ron Paul (R-Texas) and Dana Rohrabacher (R-Huntington Beach), Rep. and Sen.-elect Jeff Flake (R-Arizona), and former Secretary of State George Shultz. Where are the Democrats? The current presidential administration has raided more medical marijuana dispensaries than its Republican predecessor.

Another Republican who supported the change in petty marijuana possession from misdemeanor to infraction was former Santa Cruz State Senator Bruce McPherson, who introduced essentially the same bill as Senate Bill 791 in 2001. According to a June 26, 2001 analysis of Senate Bill 791 for the Assembly Committee on Public Safety, that bill was supported by the California Council of Police and Sheriffs, the Judicial Council of California, the Los Angeles District Attorney’s Office, and National Organization for the Reform of Marijuana Laws. Opponents listed in the analysis were the California Narcotics Officers’ Association, the California Peace Officers’ Association, and the California Police Chiefs’ Association – the same three groups that opposed SB 1449 nine years later.

Also opposing SB 791 was the “Committee on Moral Concerns,” a group active in the 1990s against medical marijuana but now appears to be defunct. This group argued that “It sends the message that marijuana use carries little or no legal risk and, therefore, is nearly acceptable. Strengthening the law, instead of weakening it, would save the lives of thousands.”

The bill passed the Senate 23-13 but was defeated in the Assembly 44-14. Only one Republican voted for it: Senator Tom McClintock, who now represents California’s 4th Congressional District.

Senator McPherson was subsequently appointed by Governor Schwarzenegger as California Secretary of State in 2005 after the Democrat incumbent resigned in disgrace. He lost to Democrat Debra Bowen when he ran for a full term in 2006. He quit the Republican Party in June 2012 when he was running for Santa Cruz County Board of Supervisors. It appears he barely won (with 50.33%) against a Democrat in the November 6, 2012 election.

Will the California Republican Party Ever Lean Toward Marijuana Legalization? If So, Would Californians Be More Willing to Give Republicans a Chance to Govern?

Of the four Republican legislators who voted to reduce the penalty for petty marijuana possession from a misdemeanor to an infraction, one was repudiated for supporting a tax increase, another was appointed to a statewide office, lost the election, and then quit the Republican Party to run for county supervisor, and a third was rejected by voters in favor of a Democrat. Not an impressive track record. Only Tom McClintock is still holding an office, but note McClintock was unsuccessful as a replacement candidate for Governor in the 2003 recall election.

And Governor Schwarzenegger – the Republican who signed the bill – certainly didn’t leave office popular with Republican Party leaders and activists, not to mention Californians at large. (Wait until the Global Warming Solutions Act of 2006 – Assembly Bill 32 – really begins kicking in!)

Among the groups taking a position on reducing the penalty for petty marijuana possession from a misdemeanor to an infraction, the district attorneys would seem to be the group most palatable to Republican voters. The district attorneys’ support for Senate Bill 1149 (2010) and Senate Bill 791 (2001) was based on pragmatic, fiscal concerns. Even then, few Republicans were in favor of the change. This is a case in which moral connotations and implications seem to have primacy over saving money for taxpayers.

Some people on both the Left and the Right feel that government should serve as an authoritative or guiding force for public morality. Others on both the Left and the Right fear government when it serves as an authoritative or guiding force for public morality. That debate will continue in the realms of intellectual ideas, such as constitutional law, philosophy, and theology.

Meanwhile, we can now measure the short-term fiscal impact of weaker drug laws on government expenditures and see how the government is redistributing limited resources to reduce violent crime and protect property. It looks like Senate Bill 1449 greatly reduced law enforcement and judicial activity for one kind of crime. The states of Colorado and Washington are now serving as pilot programs to see the effect of outright legalization. For California leaders who believe that minimalist government is the best approach, the next year will bring some interesting new insights.

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