Dried marijuana

AZ Prop 205: Recreational Marijuana

Proposition 205 is an initiative which would legalize personal possession and cultivation of marijuana for recreational use.  It would also create a new state agency to license, tax, and regulate the commercial sale of marijuana.

I believe that we must respect the autonomy of individuals to make their own choices about how to live.  While I do not encourage anyone to use mind-altering substances, and there are seemingly valid concerns about the long-term health effects of regular marijuana use, I cannot conceive of a topic more firmly within the purview of personal choice than what you choose to put into your own body.  Furthermore, our criminalization of drug use has been counterproductive.  However, I cannot support Prop. 205 as written.

Inadequate Scope, Difficult to Correct

Decriminalizing marijuana use is a significant undertaking with broad implications.  The text of the proposal itself is over fifteen pages—fairly large for the average voter to digest, and yet not nearly enough to fully consider the ramifications.  For example, what does this mean for those convicted of crimes which would no longer be considered an offense?  For keeping marijuana out of the hands of minors, for whom long-term health concerns are most significant?  For DUIs?  For family law?  For employers who maintain drug-free policies?  For contract enforcement and the provision of financial services (which in many cases are beholden to federal law)?  While the initiative touches on some of these issues, these are too complex to be addressed as briefly as they have been by the text.  Prop. 205 asks us to embark on an entirely new regulatory regime with a minimum of direction.

Furthermore, the little direction it does provide leaves me with some concerns:

  • The proposed text of §36-2860(B) specifies people cannot be penalized for acting under the influence based solely on the results of a blood (or similar) test.  While it is ultimately none of the state’s concern whether you choose to get high in your living room—it is a matter of public concern if you are operating a vehicle or performing other dangerous tasks, and this proposal makes a significant change to DUI enforcement.
  • §36-2860(D) limits the consideration of marijuana use in determining child custody and visitation rights.
  • §36-2866 lays out certain penalties for some conduct that would still be considered criminal, but in so doing removes the Legislature’s ability to impose greater penalties if needed.
  • §36-2867 micro-manages the usage of any public revenue potentially generated by the marijuana licensing and taxation system, again removing the Legislature’s ability to direct state funds as deemed necessary.

If we legalize marijuana, we know from the experience of other states that there are likely to be some bumps along the way.  The proposed law is almost certain to need some changes; however, the Arizona Constitution Art. IV, Part 1 §1 ¶6 generally precludes the legislature from changing voter-approved initiatives, which means that any future modifications of the marijuana law could only be completed by another initiative or referendum or by a super-majority vote of the Legislature which would likely face an uphill court battle—both difficult, lengthy, and expensive options.

Dubious Claims

While my opposition stems from concerns over the difficulty of amending the law to address unintended consequences, but it is also worth noting that many claims of the initiative committee cannot be taken at face value.

Will not “eliminate the criminal market”

The Yes on 205 campaign has stated that legalizing marijuana will “eliminate the criminal market”; yet marijuana remains illegal in neighboring states and at the federal level.  It is unreasonable to assume that Arizona would not remain a corridor for drug smuggling to other areas of the country.  Locally, use of marijuana in Arizona, while legal, would be heavily taxed and regulated; and where there are taxes and regulations, there will be efforts to evade them.  Moreover, marijuana would be primarily a cash business, making distributors targets for burglary or similar crimes (most financial institutions refuse to do business with the industry out of fear of running afoul of contradictory legal requirements).  When marijuana becomes widely legal, we might see some reductions in (not the elimination of) illegal smuggling activity, but we are just not there yet nationally, and supporters’ claims ring false.

Will not significantly increase tax revenue

Proponents also loudly tout the prospect of new tax revenue, promising “tens of millions of dollars annually” for education.  But to offer some perspective, Colorado’s 15% pot excise tax brought in about $35m last year.  Controlling for population, Arizona might expect something like $44m—that’s less than one-half of one per cent of the state budget—not quite the windfall they make it sound like.  Further, promising “free money” which will be borne by only a small portion of taxpayers undercuts the ideals of personal freedom and is, frankly, distasteful.

Does not “enhance public safety”

Pro-legalization initiative organizers proclaim that DUI enforcement, use of marijuana in public, and distribution of marijuana to minors would remain unchanged by the initiative; however, the initiative does make changes to the law, and in so doing prevents the Legislature from enacting tighter restrictions or penalties in the future.  Furthermore, there are legitimate public health and safety concerns surrounding the legalization of marijuana.  While plagued by a lack of historical data and uniform reporting standards, a report from our neighbors in Colorado suggests some trends that deserve closer attention:

  • During the study period, drug-related DUI dropped by 1%; however, during the same period alcohol DUI dropped 18%.  One could infer that either whatever factors are contributing to an overall drop in DUI are not effective at reducing drug DUI, or there are opposite forces keeping drug DUI rates higher.
  • Traffic fatalities involving THC-positive (which may or may not indicate impairment) drivers increased from 55 in 2013 (prior to legal commercialization) to 79 in 2014.
  • Toxicology results from one lab show not only an increase in the number of cited drivers initially testing positive for some marijuana metabolites (which, again, indicate usage but not necessarily impairment) from 57% in 2012 to 65% in 2014, but also reveal upon further testing of those drivers an increase in the number of those testing positive for Δ9-THC, which does indicate impairment, from 52% to 67% over the same period.
  • Hospitalizations (up 200%) and emergency department visits (up 29%) related to marijuana use increased after commercial sale was legalized.  This could have implications for publicly funded healthcare programs.
  • Surveys indicate that the percentage of teens who perceive marijuana as dangerous is declining—concerning given that the long-term health affects of marijuana use, while unclear for adults, are well-documented for minors.
  • Marijuana-related juvenile arrest rates increased 2% between 2012-2014.  Increases in the number of offenses occurring on school property and in the number of juveniles on probation testing positive for marijuana use were also noted.
  • School discipline records indicate some inconclusive but concerning trends related to marijuana use.

Again, given the lack of historical data and reporting inconsistencies, it is difficult to draw firm conclusions; however, the claim that legalization would “enhance” public safety is entirely without statistical evidence.

A Way Forward

I would like to see Proposition 205 defeated, and better marijuana-legalization policy more fully discussed and enacted by the Legislature.  Funding on both sides of Proposition 205 is largely driven by stakeholders more concerned with profits than good policy (Pro-205 has received significant funding from industry groups and business entities that stand to benefit directly from legalization; No-on-205 has received significant funding from an Arizona-based pharmaceutical company).

For decades, senselessly criminalizing individuals’ personal choice to consume marijuana has been an affront to freedom, a drain on law enforcement resources, a contributor to over-incarceration, and a source of mutual distrust between police and the communities they are supposed to serve.

The sky will not fall if Prop 205 passes, but Arizona can and should do better.  I encourage you to vote No on 205, and instead ask your elected representatives for sensible, comprehensive reform.

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