Implementing Prop 64: New White Paper Sheds Light on Challenges of State’s New Marijuana Law

During the winter quarter, students enrolled in California Proposition 64 and Marijuana Policy, a Stanford Law School policy lab, researched the many challenges that the state will face in implementing this new law, including decisions about how to regulate a massive new industry and how to negotiate a complex relationship with the federal government. Working with their “client,” California Assemblyman Jim Wood, who represents the so-called “Emerald Triangle” counties (Humboldt, Mendicino, and Trinity), the students analyzed how to reconcile Prop 64 with existing legislation on medical marijuana and explored options for addressing several gaps in Prop 64, including the environmental damage caused by marijuana cultivation and the need for a rational DUI standard for drivers who have used marijuana.

Robert J. MacCoun
Stanford Law Professor Robert J. MacCoun

In this Q&A, the lab’s co-directors, Professors Rob MacCoun (Professor of Law) and Keith Humphreys (Professor of Psychiatry), discuss the findings of their students’ newly-released white paper, Implementing Proposition 64: Marijuana Policy in California.

First, can you briefly outline the main points of Proposition 64, which California residents passed last year to legalize recreational use of marijuana?

Prop 64 (“The Adult Use of Marijuana Act” or AUMA) legalized the recreational use of marijuana for Californians aged 21 or older.  Users can possess up to 28.5 grams and can grow up to six plants.  Prop 64 also created a system of licensed growers and sellers.

One year prior to passage of Prop 64, the California Legislature passed California’s Medical Cannabis Safety and Regulation Act (2015).  You and your students were asked to research potential conflicts between the two laws. Can you outline the key findings?

Because the AUMA was passed by a ballot initiative, legislators are constrained in their ability to amend it.  Our students concluded that some sections of the AUMA can be amended by a simple majority while others would require a supermajority.  Any amendments must be guided by the law’s “purposes and intent.” The students suggested a number of possible amendments that could reconcile the AUMA and the MCSRA while meeting these legal constraints.

You were also asked to look into technologies and policies that might combat cannabis-impaired driving. Can you share the team’s key findings on this?

Keith Humphreys 2
Stanford Professor Keith Humphreys

Cannabis is stored in the body long after the person has used it, so it is harder to assess cannabis impairment than alcohol impairment.  The team examined some new technologies that have recently been developed, but none of those currently available is as reliable as the breathalyzer is for alcohol.  This means that law enforcement officers have to use subjective judgment, which lets in more opportunities for mistakes and bias. The situation may improve in a year or two as better technologies come onto the market.

Your client for this research was California Assemblyman Jim Wood, whose district includes most of the state’s (current) marijuana production. In addition to the above research areas, he asked you to look into ways that policymakers can protect the environment from the impacts of growing marijuana. First, how big an impact does this kind of agriculture have on the environment?

Marijuana grows put significant strain on water supplies in a region that experiences chronic water shortages.  Chemicals used to kill pests can also damage the watershed and pose other hazards (e.g., to pet dogs who eat poison pellets intended to deter rodents).  Our students noted that little money is allocated to enforce environmental protection laws, and as a result many legal and illegal marijuana grows get away with environmentally unfriendly practices.

Keith recently wrote a piece for the Sacramento Bee about how destructive grows can be.

And what are the highlights from the team’s recommendations?

The students traced some of the problems to a lack of accountability created by the use of limited-liability corporations (LLCs).  They discovered that the City of New York dealt with similar problems in their real estate market by requiring LLCs to disclose all member names, and to identify the beneficial owner in addition to any registered agents.  They also suggested ways that the collection of fines could be used to expand enforcement’s geographic coverage.

While the Obama administration chose not to enforce federal laws prohibiting marijuana use, the new Trump administration may choose to enforce them. Can the California government safeguard state rights in this area—and the will of the people as expressed by passage of Prop 64?  Or might this all be overturned by federal law?

Our students didn’t examine this during the policy lab, but both have written about this recently, Keith for Washington Post  and Rob for Stanford’s FSI blog.