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California is free to make its own drug laws

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Legalizing and taxing marijuana, as a state bill would do, is smart policy -- and there's little Washington can do to stop us.

January 14, 2010|By Tamar Todd

The Times raises two objections in its Jan. 13 editorial, "Legalize pot? Not so fast," to a proposed state bill that would legalize, tax and regulate the sale of marijuana to adults 21 and older.

First, the editorial claims that the purpose of AB 390 is "simply" to raise tax revenue for the state. This alone, The Times says, does not justify what it calls "rash and reckless" public policy. Second, The Times writes that California "does not have the authority to take such a step." Both assertions miss the mark.

There are plenty of reasons to support AB 390 apart from the estimated $1.3 billon it would add to the state's coffers. It would allow law enforcement the time and resources to actually prioritize public safety. In the last 20 years, while arrests for all criminal offenses in California dropped by 40%, arrests for marijuana possession have more than doubled. These arrests (about 78,000 occurred in 2008 alone) constitute a waste of precious resources that could have been spent protecting Californians from violent crime.

AB 390 would also rectify the discriminatory enforcement of California's drug laws. African Americans make up about 7% of the population in California, and, according to federal government statistics, they do not use marijuana at a higher rate than whites do. Yet of those arrested for marijuana offenses in California, nearly one-fourth are African Americans.

Children would also find it more difficult to buy marijuana under AB 390. Currently, kids can -- and do -- easily obtain marijuana illegally without anyone checking ID.

The state's existing marijuana laws are an example of destructive and reactionary public policy. They are largely responsible for the horrific drug-related violence in both California and along our border with Mexico. Thankfully, we aren't stuck with this destructive marijuana policy.

The Times is simply wrong to suggest that California does not have the authority to tax and regulate marijuana. There is nothing in the U.S. Constitution that requires states to criminalize anything. We could scrap our entire penal code tomorrow if we wanted to. States get to decide state law, not Washington. This is why California and 13 other states have been able to legalize and regulate medical marijuana despite continuing federal prohibition.

Certainly, even if AB 390 becomes law, the federal government could still enforce its marijuana laws against California residents. The reality is, however, the federal government does not have the resources to undertake sole -- or even primary -- enforcement responsibility for state drug crimes. More than 95% of all marijuana arrests in this country are made by state and local law enforcement agencies.

And despite Washington's active hostility to medical marijuana laws, state programs have thrived. The vast majority of patients using medical marijuana have received no threats of interference from the U.S. Drug Enforcement Administration. And tellingly, the federal government has not sought to strike down a single state law in court because there is no legal basis for doing so. It simply doesn't have the resources or political will to carry out large numbers of arrests and federal prosecutions.

Congress has allowed the states much discretion in legislating their own drug policies. The states do not need to march in lock-step with the federal government. California is free to choose a smarter marijuana control policy -- and that's exactly what AB 390 is.

Tamar Todd is a staff attorney for the Drug Policy Alliance.

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