YOLO SUN OPINION :
Statewide implementation policy regarding Proposition 215 (1996) has become a confusing layer-cake of cruel canards — concocted by two powerful and opposed political forces, motivated respectively by antagonism and avarice – alongside a pivotal judicial misinterpretation – all deployed against vital interests of persons this voter-initiative statute intends to protect.
Dueling across a diverse landscape of evolving social dynamics relevant to medicinal cannabis policies, these pernicious political forces are contorting and obscuring public comprehension of key aspects of this initiative’s implementation.
____ Two Adverse Political Forces ____
One political force, the newly emergent juggernaut: “cannabis industry,” manipulates Proposition 215 as leverage to accomplish general legalization; while, political rival, the statewide law enforcement lobby, seeks to churn-up largely spurious public-safety hysteria as an electoral bulwark against such legalization, as well as to continue its longstanding attempts to obstruct this landmark medical reform.
Seriously ill patients have become mere pawns within this sweeping and escalating political conflagration — to their immense distress and injury. Legislative attention has been hijacked by premature legalization efforts, leaving unaddressed serious calamities of the initiative’s implementation.
Proposition 215 intends to separate these patients from both cops and criminals (plus: profiteers), but these seasoned forces won’t easily relent their antithetical campaigns.
____ Cannabis Dispensaries ____
So-called cannabis “dispensaries” are claimed by organized advocacies of the cannabis industry to be an imperative implementation model, legitimized by 2004 statutes; while, law enforcement advocates loudly proclaim a litany of public safety hazards attaching to such facilities.
These polarized policy contentions are framed in bogus, hyperbolic terms.
Denying swiftly increasing legions of qualified patients convenient channels of lawful access to cannabis will certainly create and spread crime.
Yet, substantial regulatory burdens, costs and various overhead expenses related to operating retail-storefront “dispensaries,” especially in a climate of controversy and public safety concerns — in addition to persistence of black-market pricing schemes ($10 – $20 / gram) — typically renders un-“affordable” (Prop. 215, section (b)(1)(C)) this particular model of medicinal cannabis “distribution.”
Direct relations between production and patients — excluding middle-men — is essential for proper and most “affordable” cannabis access — which should become a profoundly basic legislative / public policy goal.
It would be quite wise for state implementation policy to soon enact a specific price cap, a cost ceiling (say: $200 / ounce) on the amount of remuneration that would be considered lawful under this initiative’s directive regarding “safe and affordable” access to cannabis.
Properly considered, activities / products of medicinal cannabis collectives are noncommercial (outside the stream of conventional commerce) and should not be taxed.
____ Collective Models ____
Qualified patients may affiliate collectively through flexible associations to best achieve access to cannabis — based solely upon their legal immunities for cannabis possession and cultivation granted through Proposition 215 and comprehensively codified in 2004.
Statutory recognition by the Legislature of inherently related immunities (for example: transportation is essential for possession, maintaining a place / space is essential for cultivation / distribution, remuneration is essential for relevant labor and expenses) has duly reinforced a practical perspective regarding imperative aspects / elements of implementation.
Outreach and delivery models of cannabis access operated by such “collectives,” combined with their abilities (enforced by litigation if required) to successfully function privately through ordinary avenues of civic process, should soon begin to eclipse (retail-storefront) “dispensaries” as the optimum: “safe and affordable” access vehicle for most qualified patients.
____ Five Years Of Unconstitutional Limitations On Cannabis Access ____
Another improper and injurious burden upon qualified patients, however, exists regarding the specific scope / scale of their possession / cultivation of cannabis.
Although the state Attorney General (currently) flatly admits its obvious unconstitutionality, wholly unreasonable and unworkable quantitative limitation is being impermissibly enforced against patients — since 2004.
Soon, the state Supreme Court will finally (People v Kelly – S164830) strike down these injurious limits — legislatively engineered by the law enforcement lobby — as an impermissible amendment of Proposition 215.
____ Unworkable Legal Test & Ineffective Advocacy ___
Interestingly, though, under thrall of adverse but eventually unworkable legal precedent on this specific topic, weak and timid legal advocacy, purportedly in support of this initiative, argues to the Supreme Court that preservation of these unreasonable limits, within a (likely unconstitutional) two-tier program of selectively intensified law enforcement scrutiny, is somehow needed in order to have a “safe-harbor” from field judgments (arrest / seizure) by police.
If this voter initiative statute intends to establish: “non-criminality” (state Supreme Court language) of relevant activities, by means of declaring that prohibitions against cultivation, possession and use — “shall not apply” — (section (d)) — why does there need to be a “safe-harbor” and a two-tier system / program of police analysis?
Police, of course, “apply” (this) law in the field. “[S]hall not apply” means that cannabis possession and cultivation are relevantly “non-criminal,” simply leaving police to find probable cause of crime, perhaps involving non-medical uses..
____ Origin Of Improperly Shifted Legal Burdens ____
Legal burdens on this subject are, however, being improperly shifted against patients — resulting from a judicially engineered device – a “reasonableness test” — reflecting — conflictive – election campaign, ballot-pamphlet language (written by former SF DA Terrence Hallinan) about having: “too much, or trying to sell it.”
Initiative text – with interpretive priority under the state constitution over its unfortunately conflictive ballot pamphlet language (resulting from Hallinan’s over-reactive response to baiting by the initiative’s opponents) — specifically addresses this concern in section (b)(2) — by conforming to existing public safety law and not condoning “diversion” to non-medical purposes.
Proposition 215 obviously contemplates field encounters between relevant patients and police, as well as potential judicial processes.
The core element of this initiative’s address to public safety concerns — its ban on “diversion” of medicinally oriented cannabis — involves articulating the pertinent and lawful task of police.
Is it to make (endless) determinations about probable cause of potential crimes, based upon impromptu field evaluations of widely diverse patients’ (“non-criminal”) detailed medical and agricultural needs – a strange task in this context, and well beyond police expertise?
Rather, the proper and logical task of police is to focus upon enforcing this initiative’s ban against “diversion for non-medical purposes” – discovering and using probable cause of diversion, which remains a crime — instead of predicating enforcement action from a sheer possibility or potential of diversion: “having too much.”
____ Cannabis Surplus Essential To Satisfy Goals Of Initiative ____
A broad surplus of medicinally oriented cannabis is plainly essential in order for a ‘white-market’ to properly function.
Cannabis must already exist to meet the medical needs of new patients, for example, instead of requiring them to await an uncertain outcome of many months of agricultural activities – or to resort to the distinctly un- “safe and affordable” black-market.
Other salient factors may also influence amounts being possessed / cultivated.
Cannabis consumption by eating is preferred by many patients. Yet presently, the expense and relative scarcity of cannabis, combined with the fact that five or six times as much cannabis is needed to consume it by eating — effectively force most patients to smoke cannabis.
Further, there exist very numerous strains of cannabis, each with unique medicinal properties and agricultural characteristics. Thus, just as experimenting with various pharmaceutical drugs may benefit conventional patients, and experimenting with various agricultural varieties may benefit regular farmers, this nature of approach is — even more desirable — regarding cannabis.
Surplus cannabis is obviously required to provide relevant access.
It may also be advisable as an insurance against loss resulting from any cause.
If police can operate by thinking that patients’ amounts of cannabis somehow aren’t justified (an inquiry with complex criteria, outside the regular abilities of police), that they simply have “too much” — with cops arresting, seizing, and tossing everything into court — the fundamental purposes of Proposition 215 clearly are being thwarted.
____ “Reasonableness Test” Is Unconstitutional ____
Did this initiative intend to subject seriously ill patients to the same criminal processes, from which it intends to immunize and protect them?
Of course not, and therefore courts’ purported “reasonableness test” (arising from judicial misinterpretation of conflictive ballot-pamphlet text) is as legally infirm as the unconstitutional (quantitative, legislatively derived) limitations on possession and cultivation — which the High Court is soon due to invalidate.
Proposition 215 implementation is multiply confounded by both legislatively and judicially engineered intrusions upon its provisions, as well as being deformed and manipulated by both cops and the cannabis industry, within the compressing vise of political issues regarding general legalization.
Surely, the seriously ill persons this initiative intends to protect have been very badly served by this adversely political and sensationally polarized nature of public policy.