California residents will decide whether to fully legalize the recreational use of marijuana this November in a vote that's likely to have a major influence on marijuana policy in other states regardless of which way it goes.
One of the more nuanced arguments against legalization in California is that for all intents and purposes, marijuana is already legal there for people who want to get it. The state's medical marijuana law, Prop. 215 enacted in 1996, is written broadly enough that patients can receive physician recommendations to take marijuana for just about any ailment.
The state furthermore decriminalized the possession of small amounts of marijuana in 2011, making possession of up to an ounce of the drug a minor infraction akin to a parking ticket.
"Since Prop 215 (The Compassionate Use Act) was enacted in 1996, California has devolved into de facto legalization," writes Citizens Against Legalizing Marijuana, one of the more strident voices against California's legalization measure. A recent op-ed in the San Diego Union Tribune argues that "Californians no longer face the issue of teens or young people getting put in jail for minor marijuana possession, and we haven’t for decades."
But a new report from the Drug Policy Alliance, a group that favors liberalizing drug laws, shows that far from "de-facto legalization," tens of thousands of Californians are still getting arrested for marijuana infractions each year.
The report finds that "between 2006 and 2015, there were nearly half a million marijuana arrests in California," citing data from the California Department of Justice. It further finds that while misdemeanor arrests plummeted following the passage of marijuana decriminalization in 2011, thousands of people are still arrested on marijuana misdemeanors each year, and thousands more arrested for marijuana felonies.
As you can see, following decriminalization in 2011 misdemeanor arrests dropped precipitously. But there are still a few thousand misdemeanor arrests each year, for things like possessing marijuana concentrates, keeping quantities of marijuana greater than an ounce, or giving marijuana away to others.
As you might expect, felony arrests have been more constant over the same period. Growing pot or possessing it with intent to sell outside of the existing medical framework have always qualified as felonies.
Under the proposed legal regulation on the ballot in November, possessing concentrates and giving away small quantities of weed would be fully legal, as would growing up to six marijuana plants at home. And sales of the plant would be legalized and taxed in a manner similar to the market currently in Colorado.
Beyond that, the report finds sharp racial disparities in marijuana arrests, similar to what other reports have shown nationally. Studies have shown that blacks and whites use and sell marijuana at similar rates. But in California blacks are roughly four times more likely to be arrested for any marijuana offense than whites are, according to the state's arrest data.
"In 2015, black people were more than twice as likely as white people to be arrested for a marijuana misdemeanor and nearly five times more likely than white people to be arrested for a marijuana felony," according to the report.
"While many people believe that marijuana is essentially legal in California, data show us that thousands continue to be arrested annually for marijuana activities,” said Jolene Forman, an attorney with the Drug Policy Alliance, in a statement. "These arrests fall disproportionately on black and Latino Californians. The only way to begin to repair these disparities is to move marijuana into a fully regulated market and to reduce or eliminate criminal prohibitions for minor marijuana activities."
The data are silent on what percentage of these arrests leads to criminal convictions and jail time. But an arrest in and of itself, regardless of what happens afterward, can have devastating consequences for some individuals.
An arrest can mean a missed day of work and the loss of a job or a paper trail that prevents you from getting a new job. If you can't post bail, it can mean weeks in jail awaiting a trial. In extreme cases, an arrest can be a death sentence.
Legalization in California would certainly reduce the overall number of marijuana arrests. But it's unclear how effective it would be at reducing racial disparities in pot arrests. Those disparities have stubbornly persisted in places like Colorado and Washington even after legalization.
If polling is correct, California voters appear to be poised to pass the legalization measure by a comfortable margin in November. A recent UC Berkeley poll of 3,000 registered California voters found that 64 percent favored making marijuana legal for recreational use. Only 36 percent opposed it.