It was a move inspired by the possibility that the measure would pass, although recent polls now show it modestly behind as the election next week rapidly approaches.
“Proposition 19 will let Californians decide whether to change the failed policy of using scarce state law enforcement resources to prohibit, under state law, the adult consumption and possession of small amounts of marijuana,” the letter says.
The letter asks Holder and Kerlikowske to stop threatening costly litigation and the deployment of federal drug police to arrest individuals who might use marijuana if the state enacts the proposition, which would allow adults 21 and older to possess and grow small amounts of marijuana for their personal use and allow cities and counties to regulate and tax commercial sales.
The letter calls such rhetoric “unnecessarily alarmist” and says it does little to foster a balanced discussion of a legitimate policy issue.
“Proposition 19 would remove state criminal penalties for certain adult marijuana use,” says the ACLU’s letter. “The new law would not require anyone to do anything in violation of federal law. There would be no positive conflict.”
In a letter to the nine former Drug Enforcement Administration chiefs made public earlier this month, Holder said he will “vigorously enforce” federal laws against marijuana in California, even if Proposition 19 is approved.
But realistically, the federal government lacks the resources of local law enforcement to do enforce anything other than going after large-time drug dealers, something that they are doing now.
The ACLU’s letter argues that states do not have to march in lockstep with the federal government’s prohibition of marijuana possession and that California can decide for itself whether it wishes to remove state criminal law penalties for adult marijuana use.
An explicit clause of the Controlled Substances Act, passed by Congress in 1970, holds that preemption of state drug laws is limited to a narrow set of circumstances where there is a “positive conflict” between state and federal law “so that the two cannot consistently stand together.”
The ACLU’s letter also highlights the fact that African Americans and Latinos are disproportionately arrested for low-level marijuana possession in California and across the nation even though their usage rates are the same as or lower than those of whites.
“The ACLU took heart from Director Kerlikowske’s acknowledgment that the ‘war on drugs’ has failed,” states the ACLU’s letter. “But instead of scaling back the rhetoric associated with that ineffective and out-of-date campaign, it appears the administration would resist California’s modest attempt to begin dismantling one of the defining injustices of our failed drug policies: that the war on drugs has become a war on minorities.”
A new report released last week shows that from 2006 to 2008, police in 25 of California’s major cities arrested blacks at four to 12 times the rate of whites.
“The historical and racially-disparate enforcement of marijuana laws is a primary reason why [the ACLU of Northern California, the ACLU of Southern California and the ACLU of San Diego and Imperial Counties] have endorsed Proposition 19,” the ACLU’s letter reads.
The ACLU’s letter to Holder also questions why the federal government’s response to the enactment of Proposition 19 should be any different than its approach to the existence in California and 13 other states of laws allowing the use of marijuana for medicinal purposes.
“We commend DOJ’s instruction last year to U.S. attorneys that prosecuting medical marijuana patients who comply with state laws should not be a federal law enforcement priority,” the ACLU’s letter reads. “The very same standards should apply if Proposition 19 is enacted. Regardless of the federal government’s disagreement with California’s choice to amend state criminal law, it makes no more sense for the federal government to waste scarce resources policing low-level, non-violent marijuana offenses after Proposition 19 passes, than before.”
Californians have every right to enact Proposition 19, the ACLU’s letter asserts, in an effort to curtail the wasting of criminal justice resources on the policing of low-level adult marijuana offenses and to help end the selective enforcement of drug laws.
“This is about priorities,” the ACLU’s letter reads. “Given the state of the economy, record unemployment and foreclosure rates, and thousands of troops deployed abroad, should voters enact Proposition 19, we hope the federal government will re-evaluate its priorities and use scarce federal enforcement resources wisely.”
The key point, as we have previously written, is that there is no inherent conflict between state and federal law. The federal government is free to attempt to apprehend any violators of federal law, but state and local law enforcement is not compelled to enforce federal laws.
The letter comes at a time when support for Proposition 19 is slipping. A poll released last week by the Public Policy Institute of California (PPIC) found that only 44 percent of likely voters plan to vote for Proposition 19, while while 49 percent plan to vote against it, with 7 percent undecided. This is an 8-point drop in support since September (52% yes, 41% no, 7% undecided).
Support has declined among Democrats (56% today, 63% September), dropped sharply among independents (40% today, 65% September), and remains low among Republicans (30% today, 32% September). Support has declined across nearly all demographic groups, most strikingly among Latinos (42% today, 63% September). Most of the likely voters say the outcome of the vote on Proposition 19 is important (52% very important, 28% somewhat important). Those planning to vote no are more likely to consider the outcome very important (67%) than those planning to vote yes (40%).
–David M. Greenwald reporting