Kentucky reforming drug sentences (?!)

So apparently the state of Kentucky is debating legislation to reduce prison sentences and increase diversion for drug convictions. Today’s Lexington Herald-Leader has a detailed, well-written, very informative article about the bill, which was presented Tuesday by members of a special drug-specific sentencing committee called the Task Force on the Penal Code and Controlled Substances Act. Please read the whole thing here, but my favorite passage is:

“The bill would establish a penalty of “presumptive probation” for some lesser offenses, such as drug possession, requiring judges to sentence defendants to probation rather than prison unless the judges can state a compelling reason to do otherwise. It also would require addiction treatment for those convicted of drug possession.

Marijuana possession would drop from a Class A misdemeanor, with a penalty of up to a year in jail, to a Class B misdemeanor, with a maximum jail term of 45 days, if the judge ordered incarceration at all.”

LA Times favors parole for youth LWOPs

Today’s LA Times carries this piece: http://www.latimes.com/news/opinion/opinionla/la-ed-1208-sara-20101208,0,2931752.story subtitled, “Sara Kruzan’s case shows why juveniles should not sentenced to life without parole.”

The Times had previously written in favor of Sen. Yee’s narrowly-defeated SB 399 to change this policy statewide; today’s Times asks Governor Schwarzenegger to offer clemency, if only in this one extreme case.

My favorite quotes: “She has volunteered for dozens of rehabilitation programs and won awards for her participation and attitude. … The CYA felt that she should have been prosecuted as a juvenile rather than as an adult, which would have put her into a rehabilitation program from which she could have been freed by age 25 — seven years ago.”

Sentenced a minor to life behind bars with no chance of parole is a ghastly, inhumane, cruel practice.

David Onek for SF DA?

Now that Kamala Harris is officially moving up from SF District Attorney to CA Attorney General, there will be a hotly contested election for a new District Attorney here in San Francisco in November 2011. One leading candidate is David Onek, a former member of the SF Police Commission; see http://www.davidonek.com/about

In a post on Calitics last month stumping for Kamala Harris, Mr. Onek embraced the humonetarian view of criminal justice, leading with financial statistics about the expense of recidivism. Onek applauds Harris’s Smart on Crime approach, and in particular the Back on Track program. Overall, the post suggests Onek supports more money for prevention, intervention, and rehabilitation, and less money for useless re-incarceration. Tellingly, Onek’s candidacy for SF DA was recently endorsed by Jeanne Woodford, the reform-minded former director of CDCR who supported Prop 5 in 2008.

Facebook users have the opportunity to support David Onek’s campaign for DA by clicking “Like” at http://www.facebook.com/DavidOnek

Obama backing off strict crime policy

[Re-posted from POLITICO because: can you imagine replacing “Obama” with “Schwarzenegger” in this article? Nope, me neither, but it feels good to think about it…]

Obama backing off strict crime policy
by Josh Gerstein

http://www.politico.com/news/stories/0910/42004.html

For years, it was one of the GOP’s most potent political epithets — labeling a Democrat “soft on crime.”

But the Obama White House has taken the first steps in decades to move away from a strict lock-‘em-up mentality on crime — easing sentences for crack cocaine possession, launching a top-to-bottom review of sentencing policies and even sounding open to reviewing guidelines that call for lengthy prison terms for people convicted of child pornography offenses.

The moves — still tentative, to be sure — suggest that President Barack Obama’s aides are betting that the issue has lost some of its punch with voters more worried about terrorism and recession. In one measure of the new political climate surrounding the issue, the Obama administration actually felt free to boast that the new crack-sentencing bill would go easier on some drug criminals.

“The Fair Sentencing Act marks the first time in 40 years that Congress has reduced a mandatory minimum sentence,” said White House drug czar Gil Kerlikowske, who billed the new legislation as “monumental.”

Obama’s signing of long-debated legislation last month to reduce the disparity between prison sentences for crack and powdered cocaine is being hailed by some advocates as a watershed moment in the nation’s approach to criminal justice.

And even with a tough election looming, the Democratic Congress is showing a willingness to consider moving away from incarceration and toward rehabilitation and out-of-prison punishments that might have been attacked in the 1990s as the coddling of criminals.

At the urging of a conservative Democrat, Sen. Jim Webb of Virginia , the House passed a bill in July to create a federal commission to study criminal sentences. The measure cleared the Senate Judiciary Committee earlier in the year with little resistance from Republicans.

“I think the political landscape around the issue is shifting and I think that will provide room for the administration to address some of these issues,” said Jennifer Bellamy of the American Civil Liberties Union.

Advocates point to several reasons for the shift toward a less-draconian approach to crime and for its retreat as a hot-button political issue. Crime rates are at some of the lowest levels in a generation. Stories of offenders who got decades behind bars for playing minor roles in drug operations have generated some sympathy in the public. Huge budget woes facing states and the federal government are raising doubts about policies that are causing prison populations and costs to go up.

In addition, Republicans who once accused Democrats of being soft on crime now accuse them of being soft on terrorists. As a result, tinkering with the way run-of-the-mill criminals are treated doesn’t seem to be the political third rail it once was.

Mary Price of Families Against Mandatory Minimums noted that the crack-disparity bill passed in Congress with remarkably little consternation. “I think other concerns have crowded out some of the hysteria around crime,” Price said.

“Republicans could have said, ‘If this passes, we’ll make this an issue in the midterms.’ Nobody said that,” Price observed. “This was not an issue for Republicans.”

While most of the Obama administration’s moves toward rolling back some of the harshest aspects of the war on crime have been tentative, some have been surprising. For instance, a little-noticed letter issued by the Justice Department in June urged a federal commission to review the sentencing guidelines for child pornography offenses — a review that many advocates say would almost certainly result in lowering the recommended sentences in such cases.

“They’re saying, essentially, that they want to level sentences in the middle, but necessarily, leveling in the middle is almost demanding that they bring the guidelines down,” said Doug Berman, a law professor at Ohio State University. “They’ve chosen language … saying we’re open to doing something that is not entirely tough.”

In another sign of the new climate, Attorney General Eric Holder announced a review of criminal sentencing policies soon after he came into office.

“Too much time has passed, too many people have been treated in a disparate manner and too many of our citizens have come to have doubts about our criminal justice system,” Holder said in June 2009. “We must be honest with each other and have the courage to ask difficult questions of ourselves and our system. We must break out of the old and tired partisan stances that have stood in the way of needed progress and reform. We have a moment in time that must be seized.”

The internal review endorsed lowering some crack sentences, something Obama had already promised to do, and publicly offered some vague suggestions on changes to mandatory minimums. Holder also issued a memo giving local federal prosecutors a bit more autonomy in charging decisions.

Another result of that review was a June letter that called for a new look at child porn sentences.

“The time is ripe for evaluating the current guidelines and considering whether reforms are warranted,” Jonathan Wroblewski, director of the Justice Department’s Office of Policy and Legislation, wrote to former judge and FBI director Bill Sessions, who heads the U.S. Sentencing Commission. “Consideration ought to be given to updating many aspects of the child pornography sentencing guidelines to better calibrate the severity and culpability of defendants’ criminal conduct with the applicable guideline sentencing ranges.”

Justice’s call for a review came as defense attorneys have been gaining traction with arguments that the guidelines and mandatory minimums set by Congress call for excessively long sentences. Some lawyers contend that defendants who briefly exchange child porn photos or video online can actually get longer sentences than those who seek to molest children.

The Justice Department has disputed those arguments in court, but federal judges have increasingly given sentences below the guidelines. An assistant federal public defender from Missouri , Troy Stabenow, said he thinks the department’s decision is basically a tactical move to stem the slide towards lower sentences.

“It’s just the logical thing they needed to do,” said Stabenow. He said the notion that any politician would wade into the subject on his own volition boggles the mind.

“I would think no sane politician who values being reelected would want to engage in this area,” Stabenow said. “I don’t think there’s any criminal group that yields a more visceral response than the child pornography group.”

A Justice Department spokeswoman stressed that the June letter didn’t endorse higher or lower sentences for child pornography.

“We asked the sentencing commission to comprehensively review and report on the state of federal sentencing and to explore whether systemic reforms are needed,” Justice spokeswoman Laura Sweeney said. “We also asked the commission to review the guidelines for child exploitation and fraud offenses, but did not recommend necessarily higher or lower penalties for either child exploitation [or] fraud offenses.”

One prominent advocate for long sentences in child pornography cases, Ernie Allen of the National Center for Missing and Exploited Children, said he welcomes a review of the guidelines and why judges are often giving lower sentences. However, he said he would oppose any overall reduction in the guidelines and does not think that’s what Justice officials want.

“If that is the implication, clearly, we would differ with that,” Allen said. “These are crime scene photos that re-victimize the child in the photo over and over again, [but] I think both of us recognize that the crime guidelines are dated.”

Despite the tentative moves in the direction of lessening some sentences, there remain numerous signs that Obama and his aides recognize that the issue could still be politically damaging.

When Obama signed the crack disparity bill, only still photographers were allowed in and the president issued no formal statement. The Justice Department’s sentencing review group has indicated it has no plan to issue a formal report that could become a political football. And, 18 months into his presidency, Obama has yet to issue a single commutation or even a pardon to an elderly ex-con seeking to clear his record.

Some advocates note that the crack sentencing bill was not particularly ambitious: it reduced the crack/powder disparity from 100-to-1 to 18-to-1. And it wasn’t retroactive, so some who were sentenced under mandatory minimum laws may not benefit.

Asked whether Obama might grant requests to commute the sentences of those who would have gotten less punishment if they committed their crimes today, an administration official said the crack-disparity bill “reflected Congress’s judgment that the law should not be retroactive, [and] the president believes that the Fair Sentencing Act will go a long way toward ensuring that our sentencing laws are tough, consistent and fair.”

The official also downplayed the notion that Obama might offer some kind of blanket clemency for earlier crack-cocaine offenders, saying that “as a general matter, the president agrees with the Department of Justice’s long-held view that commutation is an extraordinary remedy that should only be granted in extraordinary circumstances.”

But activists are watching Obama on the issue. “Retroactivity will be the next battle,” Price said. “It would be cruelly ironic for us to take lessons learned from those who are currently serving, change the law for people going forward and then say, ‘OK, the accident of the calendar you are condemned to serve much longer than people who, because of your experience, are getting out sooner.’”

In the heat of the presidential campaign, Obama sent mixed signals on crime. In the primary, he differed with Hillary Clinton by endorsing shortened sentences for some crack offenders already in jail. As the general election neared, he tacked to the right of the Supreme Court by criticizing the court’s 5-4 decision barring the use of the death penalty for child rapists who don’t kill their victims.

Berman said he thinks Obama and his aides can’t fully break with President Bill Clinton’s approach of trying to look as tough or even tougher than Republicans on crime.

“Obama wants to do something, I think, big on criminal justice and I think he’s absolutely afraid to,” Berman said. “Democrats are right to continue to fear tough-on-crime demagoguery. The lessons of Clinton continues to resonate. … This really is, inevitably, low-priority, high-risk kind of stuff.”

Obama also faces one factor Clinton did not: race. While 58 percent of federal inmates arewhite, Berman said some Americans are sure to have the perception that an African-American president is aiding criminals of his own race.

“Whether consciously or subconsciously, everyone understands that the first black president has to tread particularly cautiously in this area,” Berman said.

LWOP Reconsideration Bill Rejected

A few days ago we reported on Leland Yee’s Senate bill aimed at allowing juveniles sentenced to life without parole to ask the court to reconsider their sentences. Yesterday, the bill was rejected by the Assembly. A motion was made by Assemblymember Fuentes to reconsider, so this may resurface again. The rejection is regrettable, given the fact that this would not be a sweeping change and would enable relief in cases of severe injustice.

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props to Janet Gray for alerting me to this.

Marijuana and Federalism: California a Test Case

On Friday, August 6, 2010 I attended a forum of the Voluntary Committee of Lawyers called “Marijuana and Federalism: California a Test Case.” The event was originally conceived as a chance for experts to publicly examine the implications of the state-federal conflict of the passage of A.B. 2254, Assm. Ammiano’s tax-and-regulate marijuana bill. Then, Ammiano withdrew 2254 in light of Proposition 19, a voter initiative legalizing marijuana and allowing local governments to tax and regulate sales.

Washington State Representative Roger Goodman, E.D. of the VCL, moderated the first of two panels, “Marijuana Legalization: A Clash of Federal Power and States’ Rights.” His excellent panelists explored the contours of the state-federal conflict, and its implications for potential legal challenges to Prop 19. First, Professor Robert Hirshon, who was president of the ABA during 9/11, spoke. Bob said that his “uber-blue-blood” law firm back in Maine had recently asked the Maine State Bar Association for guidance on the professional responsibility considerations of representing medical marijuana dispensaries (Maine has recently become the first American state to issue licenses to retail marijuana stores). The Maine Board of Overseers of the Bar responded with Advisory Opinion 199, advising that because marijuana is federally illegal, representing dispensaries could be a breach of the professional responsibility rules against knowingly assisting a crime.

Next Allen Hopper of the ACLU Drug Law Reform Project affirmed that representing dispensaries could arguably conflict with federal law and thus the PR code. However, he carved out an exception for attorneys who believe they are acting legally and in good faith. His best point came from his personal experience in representing WAMM, the Wo/Men’s Alliance for Medical Marijuana, in County of Santa Cruz v. Gonzalez. In that case, earlier this year, a medical marijuana collective and the county regulating it reached a settlement in which the federal government agreed to drop its prosecution.

Finally Professor Alex Kreit of the Thomas Jefferson School of Law in San Diego composed the meat of the panel by summarizing the law review articles he has published on this topic. Alex bifurcated analysis of Prop 19’s two sections, one of which legalizes personal possession and cultivation of marijuana, and the other of which allows counties and municipalities to regulate and license marijuana sales. He referred to Section 903 of the federal Controlled Substances Act, which says that the CSA will only preempt state law in the event of a “positive conflict” between state law and the CSA (which prohibits marijuana etc.). Alex analogized that there is no “positive conflict” between prohibiting marijuana and allowing marijuana, since a non-user can comply with both laws — this is, at worst, a passive conflict — whereas a “positive conflict” would result from a state law requiring mandatory marijuana consumption (preventing anyone from being able to follow both state and federal law simultaneously). He supposed that federal prosecutors would likely go after locally-licensed marijuana retailers, but would probably lose. Alex also pointed out that the federal government simply lacks the resources to enforce this federal law, rendering the point largely moot. He mentioned his shortly forthcoming article in the Chapman Law Review on this topic, “Beyond the Prohibition Debate: Thoughts on Federal Drug Laws in an Age of State Reforms.”

VCL President Eric Sterling moderated the second panel, “Marijuana Legalization on the Ground: Practical Considerations.” First, Assm. Tom Ammiano discussed his marijuana legalization bill, which gained notoriety last year as AB 390 when it passed the Public Safety Committee. He mentioned that this legislation would pass in a “hallway vote,” highlighting his fellow legislators “cowardice” on this issue. He also explained to the audience the concept of “contingency legislation.” The legislature could pass a law or laws regulating marijuana sales this year, set to take effect only in the event that the voters approve Prop 19. Though the Supreme Court would be required to overturn legislation amending a voter-approved initiative, legislation that adds to an initiative and is within its spirit and intent is not only acceptable but good planning. In fact, Section 5 of Prop 19’s text specifically allows for new laws creating a statewide regulatory system.

Drug Policy Alliance Staff Attorney Theshia Naidoo (disclaimer: was recently my boss) addressed the main substance of the panel by raising numerous practical considerations related to the passage of Prop 19. She provided an overview of the legal issues, especially on the civil side, likely to arise. She also mentioned the social justice implications of legalization, as DPA has just released a new report, “Targeting Blacks for Marijuana: Possession Arrests of African Americans in California, 2004-08,” available here. African Americans are 7% of California’s population but 33% of all felony marijuana arrests.

Americans for Safe Access Chief Counsel Joe Elford discussed Prop 19’s effects on medical marijuana law. ASA neither supports nor opposes Prop 19, but is neutral. He used medical marijuana as a case study for potential legal challenges to Prop 19. Joe mentioned that the upcoming appellate ruling in Qualified Patients Association v. Anaheim could undermine retail sales (though the ruling, since released, did not). He focused on his “greatest loser,” Ross v. RagingWire, in which the California Supreme Court ruled medical marijuana patients can be discriminated against for purposes of employment. Joe’s main takeaway was that Prop 19 expressly does not change our medical marijuana laws, except that it would overturn RagingWire — and would likely lower the price of medicine for patients.

Finally, Sheriff Tom Allman of Mendocino County explained his opposition to Prop 19. He said he supports medical marijuana, but opposes the way it has been implemented in California: by patchwork. He explained that medical marijuana has brought money, and money has brought greed, and greed has brought violence. He sees Prop 19 bringing more marijuana money into the public eye, and thus leading to more violence. His specific stated example for opposing medical marijuana implementation in Mendocino County was “stench,” i.e., neighbors’ complaints about odor from cultivation.

Judicial Discretion to Alter Sentences of Lifer Juveniles?

The ball that initiated its roll after Roper v. Simmons, the case abolishing the death penalty for juveniles, continues rolling. More recently, the Supreme Court ruled in Graham v. Florida that Life Without Parole for juveniles was constitutionally appropriate only for murder. And now, a new Senate bill aims at providing the court with the possibility to reconsider sentences of juveniles sent to Life Without Parole.

Existing law provides that the Secretary of the Department of Corrections and Rehabilitation or the Board of Parole Hearings or both may, for specified reasons, recommend to the court that aprisoner’s sentence be recalled, and that a court may recall a prisoner’s sentence.

This bill would authorize a prisoner who was under 18 years of ageat the time of committing an offense for which the prisoner was sentenced to life without parole to submit a petition for recall and resentencing to the sentencing court, and to the prosecuting agency, as specified. The bill would establish certain criteria, at least one of which shall be asserted in the petition, to be considered when a court decides whether to conduct a hearing on the petition for recalland resentencing and additional criteria to be considered by the court when deciding whether to grant the petition. The bill would require the court to hold a hearing if the court finds that the defendant’s statement is true, as specified. The bill would apply retroactively, as specified.

The Chron adds some details:

Opponents, including the California District Attorneys Association and the Assembly Republican Caucus, flatly reject those contentions. They argue that the current system works and that only the “worst of the worst” are eligible for life without parole now.

Scott Thorpe, the association’s CEO, noted that juveniles are considered for lifetime sentences if they are tried as adults.

“We’re talking about the most serious types of crimes, and we’re also talking about defendants who, because of a number of factors, have been determined to deserve at least eligibility for that punishment. We’re talking about first-degree murderers,” he said.

Supporters, however, say juveniles are different from adults and should be treated as such. They are more likely to be influenced by other people and don’t have the same ability to grasp foresight and consequences, said Yee, a child psychologist. And, he said, their brains are still developing, giving them a larger capacity for rehabilitation than adults.

“We’re letting prisoners out because of overcrowding – ought we not at least look at children and see if they are deserving to be let out?” Yee asked.

Elizabeth Calvin of Human Rights Watch and other supporters also argued that juveniles tend to receive harsher sentences than adults for the same crimes, because they are less likely to agree to plea deals, don’t always understand their rights or refuse to accept responsibility if they were present for, but did not actually commit, a murder.

Senator Yee has been attentive to issue of juvenile justice. Another bill he authored aims at providing institutionalized juveniles with treatment for substance abuse.

Oral Arguments Re: Prop 9 in 9th Circuit

Yesterday morning the Ninth Circuit heard oral arguments in Gilman v. Schwarzenegger. As some of our readers may recall, petitioners challenged the changes made in Prop 9 to the parole hearings, and in particular the deferrals in holding parole hearings. The District Court, after finding out some statistical information about the timing of hearings before and after Prop 9, ruled on behalf of the plaintiffs. The Governor appealed, and the Ninth Circuit will regard the arguments as pertaining not only to the specific prospective parolees, but to the entire class of parolees as well.
The main premises of the Prop 9 changes to parole hearings are outlined in this excellent memo from the Prison Law Office. As the memo explains, Prop 9, marketed as a victim rights proposition, actually made substantial changes to the way parole hearings are conducted. The topic of yesterday’s arguments was the provision lengthening the time before an inmate is eligible for a parole hearing.
In the arguments yesterday, the Judges asked whether it made a difference that the new law has a “safety valve”, that is, a provision that allows for an expedited hearing at the parole board’s discretion. The governor’s representative replied in the affirmative. According to the state, the existence of the safety valve rules out any sort of statistical confidence that a given inmate would be necessarily worse off by the Prop 9 provisions. After all, a given inmate might receive an expedited hearing and be released faster than he or she would under the old law. The attorney, however, left open the possibility that statistical evidence to the contrary might be provided in the years to come. Another problem the judges had was related to the fact that in other cases in which such “safety valves” left the law intact, the default was serving the minimum sentence, whereas after Prop 9 the default is serving the maximum, unless the expedited review is provided.
The representative for the original plaintiffs did not think that the “safety valve” rules out the possibility to argue that, as a class, inmates are worse off after Prop 9. First, the ex-post-facto review the court has to pursue is irrespective of any “safety valves”, as other cases prove. And second, the terms are very problematic. Expedited review is an option only if there are new circumstances or a significant change, and it is a complicated request to make, paperwork-wise and timewise. An interesting question was whether expedited reviews should only be available if circumstances change, given the fact that different panels might rule differently on the fate of a given inmate.
We will follow the litigation and report on the results. Stay tuned!
The full oral arguments can be heard here.

Prop 9 To Be Examined by 9th Circuit

The Ninth Circuit is to finally examine the premises of prop 9 that led Judge Karlton at the District Court to decide they were unconstitutional. Avid followers of this saga will recall that Prop 9, marketed as a pro-victim proposition, pretty much provided victims with the rights they already had in many counties, but in addition made several modifications to parole proceedings, including placing substantial limitations upon the right to counsel. The constitutionality of these premises will be central to this upcoming hearing:

THURSDAY, AUGUST 12, 9 a.m.


Gilman v. Schwarzenegger, 10-15471

California State government appellants challenge the district court’s grant of a preliminary injunction barring enforcement of Proposition 9, the “Victims’ Bill of Rights Act of 2008: Marsy’s Law,” which affects California’s parole system, including the availability and frequency of parole hearings.
For previous chapters of this saga, read here, here, and here.

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Props to colleague Marsha Cohen for alerting us to the date.

Would Legalizing Marijuana Increase Revenue?

This morning’s Chron includes a story about a recently-completed RAND study on the expected fiscal effects of legalizing marijuana.

The upshot of the six-month study by the nonpartisan Rand Drug Policy Research Center is this: It’s anybody’s guess as to whether the state will suffer or prosper if voters approve Proposition 19 on the November ballot. The measure would allow local governments to regulate and tax pot sales and controlled cultivation, and to let adults over 21 possess as much as an ounce.

“There is just so much uncertainty, that while we could look at the data and create a scenario that could be very good from an economic standpoint, we could also create a very bad one,” said Rosalie Liccardo Pacula, co-director of the Rand center in Santa Monica. “The overall effect is a bit of a mystery.”

More information, directly from RAND:

While the state Board of Equalization has estimated taxing legal marijuana could raise more than $1 billion in revenue, the RAND study cautions that any potential revenue could be dramatically higher or lower based on a number of factors, including the level of taxation, the amount of tax evasion and the response by the federal government.

Past research provides solid evidence that marijuana consumption goes up when prices go down, but the magnitude of the consumption increase cannot be predicted because prices will fall to levels below those ever studied, researchers say. Consumption also might rise because of non-price effects such as advertising or a reduction in stigma, researchers say.

In addition to uncertainty about the taxes levied and evaded, researchers do not know how users will respond to such a large drop in price. Even under a scenario with high taxes ($50 per ounce) and a moderate rate of tax evasion (25 percent), researchers cannot rule out consumption increases of 50 percent to 100 percent, and possibly even larger. If prevalence increased by 100 percent, marijuana use in California would be close to the prevalence levels recorded in the late 1970s.

The full RAND report, which can be downloaded here, reaches the following conclusions:

  • The pretax retail price of marijuana will substantially decline, likely by more than 80 percent. The price that consumers face will depend heavily on taxes, the structure of the regulatory regime, and how taxes and regulations are enforced.
  • Consumption will increase, but it is unclear how much because we know neither the shape of the demand curve nor the level of tax evasion (which reduces revenues and the prices that consumers face).
  • Tax revenues could be dramatically lower or higher than the $1.4 billion estimate; for example, there is uncertainty about potential tax revenues that California might derive from taxing marijuana used by residents of other states (e.g., from “drug tourism”).
  • Previous studies find that the annual costs of enforcing marijuana laws range from around $200 million to nearly $1.9 billion; our estimates show that the costs are probably less than $300 million.
  • There is considerable uncertainty about the impact of legalizing marijuana in California on public budgets and consumption, with even minor changes in assumptions leading to major differences in outcomes.
  • Much of the research used to inform this debate is based on insights from studies that examine small changes in either marijuana prices or the risk of being sanctioned for possession. The proposed legislation in California would create a large change in policy. As a result, it is uncertain how useful these studies are for making projections about marijuana legalization.

The predictive model adopted by the paper considers a possible scenario: a $50 per-ounce tax (they do consider some alternative scenarios and intervening factors). The researchers find that, in this situation, marijuana consumption is elastic and might increase. This prediction is based on levels of usage in the past. Part of the challenge, as researchers admit, is that predicting changes in consumption is a difficult thing to do; it is difficult to tell how much of the usage level has to do with changes in price or regulatory regime (and, of course, whether changes in usage are going to be short-term or long-term.)

This is an interesting development. Before formulating the proposal, Tom Ammiano’s office had done some public polling, which suggested that the public was much more likely to support a legalization bill if it were marketed as a revenue enhancing measure (“tax and regulate” rather than “legalize”). This plan, however, might backfire in light of the results of the RAND report. However, it is important to keep in mind, when considering whether to vote for this proposition, whether there are not other reasons for legalization.