Taking the High Road

A November ballot initiative could make California the first state in the nation to legalize marijuana. Hadn't they done that already? Not quite.

by Jessica Bennett March 26, 2010

In downtown Oakland, there is a nine-block area that locals call "Oaksterdam." Nestled among what was once a rash of vacant storefronts, it's a kind of pot utopia where everything moves just a little bit more slowly than the outside world. Here, where medical marijuana is legal, you'll find the Blue Sky Coffeeshop, a pot dispensary where getting an actual cup of Joe takes 20 minutes but picking up a sack of Purple Kush wrapped neatly in a brown sack takes about five. There's the Bulldog Cafe, a lounge with a not-so-secret back room where the haze-induced sounds of Dark Side of the Moon seep through thick smoke. There's a glass-blowing shop where bongs are the art of choice, and, of course, there's the fabled Oaksterdam University, a pot school operated by a man named Richard Lee.

At 47, Lee is a kind of unofficial Buddha to the pro-pot movement. He has transformed a neighborhood and brought thriving new businesses to Oakland's downtown. Now, as the sponsor of an initiative that was approved this week by the California secretary of state—to appear on November's ballot—Lee hopes the rest of California will join Oakland as a kind of trailblazer in the fight for marijuana legalization. If approved by voters, the Regulate, Control and Tax Cannabis Act would make California the first state in the nation to make pot legal, allowing Californians 21 and older to grow and possess up to an ounce. And in much the same way Oakland has embraced the medical-marijuana industry, the law would pave the way for local jurisdictions to tax and regulate the marijuana trade—a concept that, with the California state government billions in the red, even Gov. Arnold Schwarzenegger has said should be up "for debate." "People are no longer outraged by the idea of legalization," former San Francisco mayor Willie Brown wrote in a recent op-ed. "And truth be told, there is just too much money to be made both by the people who grow marijuana and the cities and counties that would be able to tax it."

Harvard economist Jeffrey Miron has estimated that the cost to the country of cannabis prohibition is $13 billion annually, with an additional $7 billion lost in potential tax revenue. With that in mind, Oakland voters became the first in the nation earlier this year to enact a special cannabis excise tax—$18 for every $1,000 grossed—that the city believes will generate up to $1 million this year. Lee hopes legalizing marijuana on a state level would do the same, only on a much larger scale. "The reality," he says, "is that we're creating jobs, improving the city, filling empty store spaces, and when people come [here] they can see that."

California has allowed for medical-marijuana use since 1996. But "medical" is something of an open joke in the state, where anyone over age 18 with a doctor's note—easy to get for ailments like anxiety or cramps, if you're willing to pay—can obtain an ID card allowing access to any of the state's hundreds of dispensaries, or pot shops. "You can basically get a doctor's recommendation for anything," one dispensary worker told NEWSWEEK. Federal law, of course, still forbids the cultivation and possession of marijuana. It was banned, over the objections of the American Medical Association, in 1937. But in February of last year, Attorney General Eric Holder stunned critics when he announced that the Department of Justice would cease raiding medical-marijuana dispensaries (in California and elsewhere) that had been authorized under state law. Obama's newly appointed drug czar, R. Gil Kerlikowske, has since condemned legalization, in a speech to police chiefs in San Jose earlier this month.

You'd think it might make California users nervous—except that the drug czar does not have the legal authority to enforce drug laws. The White House Office of National Drug Control Policy did not return NEWSWEEK's calls for comment, but experts say the reality is that the federal government doesn't have the resources, or the desire, to go after each and every Californian who is operating within their local laws. Federal punishment for marijuana possession of up to an ounce is harsh: up to a year in prison and a $1,000 fine. Under California law, the same crime is a misdemeanor—subject to a measly $100 fine. "We already have the Justice Department saying they're not going to interfere with practices that are in compliance with state law," says Paul Armentano, the deputy director of NORML, a pro-pot lobbying group. "That statement was made in reference to medical marijuana, but there's no reason to think the approach to recreational use would be any different."

The arguments against the passage of this kind of law are easy to list: that it glamorizes pot use, promotes a gateway drug, leads to abuse. And though studies show the health effects of marijuana are fairly mild in comparison to drugs like heroin, cocaine, or even alcohol, there are still risks to its consumption. Heavy pot users are more likely to be in car accidents; there have been some reports of it causing problems in respiration and fetal development. And, as the director of the National Institute on Drug Abuse, Dr. Nora Volkow, put it recently, there are a number of medical professionals, and many parents, who worry that the drug's increased potency over the years has heightened the risk of addiction. "It's certainly true that this is not your grandfather's pot," says Mark Kleiman, a drug-policy expert at the University of California, Los Angeles. Opponents of the initiative, including California's Democratic Attorney General Jerry Brown, who is seeking the governorship, and San Francisco District Attorney Kamala Harris, a Democrat who is running to replace Brown as attorney general, are gearing up for a fight. But Lee has pledged to use $1 million of his own funds from his various thriving businesses in Oaksterdam, and he has put together a highly organized group of allies, including former Clinton White House consultant Chris Lehane. It's also possible he'll tap multibillionaire investor George Soros and George Zimmer, the head of the Men's Wearhouse chain of clothing stores, who have donated to efforts to relax drug laws in the past.

The vote will be the second time in nearly 40 years that Californians have had the chance to decide the issue of legalization; the first one was Proposition 19 in 1972 (it failed). But much has changed since then, in both legal regulation and cultural attitudes. Thirteen states now allow medical marijuana, and a number of cities, such as Oakland and Seattle, have passed measures making prosecution of adult pot use the lowest law-enforcement priority. In April, an ABC/Washington Post survey showed that 46 percent of Americans support legalization measures, up from 22 percent in 1997. And in California, a recent Field Poll showed that 56 percent are already on board to legalize and tax the drug. This month, NORML launched a national ad campaign that will appear in the center of Times Square, declaring "Money Can Grow on Trees!" And everyone from the president to the most successful Olympic athlete in recent history (Michael Phelps) has talked about smoking it at one point or another. "This is a new world," says Robert MacCoun, a professor of law and public policy at University of California, Berkeley, and the coauthor of Drug War Heresies. "If you'd have asked me four years ago whether we'd be having this debate today, I can't say I would have predicted it." We'll see if California voters will agree.