By Idan Ivri | The Jewish Journal of Greater Los Angeles
The Talmud states that the law of the land is the law. But when it comes to pot, what does that mean? State and federal rules on marijuana are rapidly changing. California has legalized medical use and decriminalized recreational possession of small amounts, but many smokers still rely on the black market.
Marijuana is everywhere. Smokers come from every walk of life — from the college student to the cancer patient, from the wealthy older couple to the heroin addict who started out just smoking weed.
Jews care about this issue because Jews, like every other group, can be found among those who use, who dispense, who grow, and also those who disdain this all-pervasive drug. In fact, the halachah of pot is not entirely clear.
The Talmud states that the law of the land is the law. But when it comes to pot, what does that mean? State and federal rules on marijuana are rapidly changing. California has legalized medical use and decriminalized recreational possession of small amounts, but many smokers still rely on the black market. And marijuana remains completely illegal under federal law, although enforcement is inconsistent. Now, Californians face Proposition 19 on the Nov. 2 ballot, a measure that would allow possession, purchase and taxation of marijuana for adult recreational use.
The Jewish perspective on pot is ambivalent, and observant Jews could plausibly take either side of Proposition 19, according to Rabbi Elliot Dorff, a professor of ethics and Jewish law and rector at the American Jewish University. On one hand, Judaism “is very insistent on responsibility for our actions,” Dorff said, meaning that becoming extremely intoxicated on any substance is forbidden. Any drug that harms the body is also forbidden because “in the Jewish tradition, God owns our bodies, and we have a fiduciary relationship to take care of [ourselves],” Dorff said.
On the other hand, marijuana may be more akin to alcohol — a drug that observant Jews may take in moderation — rather than tobacco, which the Jewish tradition frowns upon as dangerous and highly addictive, Dorff said. Where marijuana falls on that sliding scale is an “empirical question,” he added, and the answer may affect how Jews vote on Proposition 19. Schools, synagogues, drug control experts and law enforcement all have a role to play in providing that answer and determining the boundary between the law and making a responsible individual choice.
Cities Rule
The most distinguishing feature of Proposition 19 is how much authority it delegates to cities. Possession of up to 1 ounce would be legal statewide, but California already has made possession of that amount an infraction on par with a speeding ticket. The real meat of Proposition 19 is that cities would become free to make their own rules on regulating and taxing the commercial sale of marijuana to adults over the age of 21.
“I think they’re trying to make sure cities can opt out, like with liquor stores [or] medical marijuana dispensaries,” said Kyle Kazan, a former Torrance police officer and member of Law Enforcement Against Prohibition (LEAP), which supports the measure. “You can zone it away.”
Opponents, however, see the delegation of authority to cities as a “legal nightmare,” which has become one of the catch phrases of the No on 19 campaign. “You’re going to have 550 different versions of this law, city by city,” said Rodney Jones, chief of the Fontana Police Department and a Proposition 19 opponent. County sheriffs will have a particular problem, Jones said, because they cross city lines and will be responsible for enforcing small differences in rules on marijuana.
But Kazan said police already handle similar complexity in enforcing various city ordinances on the sale of liquor. And if the initiative had set a single rule for marijuana sales statewide, supporters worry that “the other side would say, ‘How dare they have a one-size-fits-all solution?’ ” said Hanna Liebman Dershowitz, an attorney and member of the legal committee of Yes on 19.
The Case for Talking to Kids
Even if only a few cities authorize sales, both sides agree that Proposition 19 almost certainly would increase overall use of marijuana in California. It would be more widely available in stores than it is on the black market now, and it would not be stigmatized as illegal. And unless governments levy huge taxes, it would also likely be much cheaper. The real debate is whether the inevitable increase in use will be more harmful than the status quo.
Drug war veterans have long argued that marijuana physically damages the brain and other organs, but the data on that are inconclusive. “ ‘Reefer Madness’ isn’t true,” said Keith Humphreys, a professor of psychiatry at Stanford University School of Medicine and former senior policy adviser at the White House Office of National Drug Control Policy under President Obama. “The [idea that] everyone who picks up a joint has their life ruined is absurd,” he said.
But that doesn’t mean marijuana is harmless, Humphreys said. “I don’t deny that some people use marijuana and they’re fine, but if a million people pick up regular marijuana use, probably at least 10 to 20 percent will have significantly adverse experiences in life, maybe do badly in school, maybe get in a car accident.” Legal marijuana would be particularly harmful to high school students who are already on the verge of flunking out, he said.
Nobody knows exactly how much usage will increase, but Humphreys predicts the state could add anywhere from 1 million to 3 million new smokers. Vulnerable groups, such as teens and the poor, are particularly likely to smoke more, he said, because they have less disposable income and will be more attracted by the lower price.
Jason Ablin, head of school at Milken Community High School, has worked with high-school students for 20 years, but he’s not convinced that the status quo of criminalization is an effective deterrent, either.
“I think if kids are going to use drugs and alcohol, they’re going to find ways to acquire them — they do it with alcohol already,” Ablin said. “We have a lot of double standards with marijuana use. The association with marijuana is counter-culture, so that becomes a lot more damning than, say, alcohol,” he said.
For Dershowitz, that association is patently unfair. “As we look inward [following] Yom Kippur and the New Year, we also need to look outward to reflect on our actions as a society,” she said. Dershowitz is particularly troubled by the social and legal stigmas that follow a young person who is busted by law enforcement for marijuana, even now that the penalties have been reduced. “We should abhor a system that erases other people’s chances to turn toward the good simply because they’ve chosen an action that we singled out for disdain.”
Instead of focusing on heavy-handed scare tactics and criminalization, Ablin prefers to engage kids in a broader public policy discussion about the way society treats drugs in general. “Because I work in schools, I have a lot more confidence in kids to critically think through problems,” Ablin said. “You’re not getting anywhere with kids by talking at them. [You’ll do] much better work by listening to them.
Yes on 19 proponent Dershowitz expressed much the same sentiment, saying that, as a mother, she feels comfortable in her ability to honestly educate her kids about marijuana without relying on prohibition. “I believe that we need to give kids the tools to make wise decisions and manage the messages that come to them,” she said.
Harriet Rossetto, founder and CEO of Beit T’Shuvah, a Los Angeles-based drug treatment center and congregation founded on Jewish spirituality, echoed those calls for engagement with young people. “I think the much bigger issues are the things that young people are lacking in their lives that lead them to look for avenues of escape,” Rossetto said.
Rossetto is ambivalent on criminalization: “I think that for a lot of addicts, marijuana is a gateway drug, and easy access might accelerate that,” she said. “On the other hand, I think criminalization creates another set of issues that exacerbate the problem,” such as the increase in crime that accompanied prohibition of alcohol.
Indeed, for many who actually work with teens and young adults, there seems to be more trust in education and community as primary antidotes to drug use, rather than government and criminalization. “I think often these days we want to wrap [kids] in some kind of protective pixie dust and that’s somehow going to solve all these problems,” Ablin said. “I think it makes it worse.”
One for the Road
Picture this: A year after Proposition 19 passes, it’s raining late at night on the 405 Freeway. A patrolling police officer sees a car swerve across two lanes. He pulls the driver over. The driver’s Breathalyzer comes up clean, but the officer sees a passenger holding a pipe with marijuana. What happens next?
A construction worker arrives at a work site in the morning. Before leaving home, he smoked a small joint in his kitchen. He sits behind the controls of some heavy machinery and begins his work. The foreman has suspicions, but under Proposition 19, what can he do?
These are a couple of the scenarios that No on 19 campaigners hope will make Californians think twice.
When it comes to DUIs, “If officers pull somebody over and the driver has a joint going, he’ll probably pass it to the passenger,” Fontana Police Chief Jones said. “If that’s an open container of beer, we’re going to give the passenger a ticket, [but] under Prop. 19, we can’t even touch passengers.”
On the other hand, even though passengers may help drivers avoid arrest for smoking while driving (which Proposition 19 says is illegal), the driver would still be on the hook for driving under the influence if he or she is found to be stoned. Although there is no Breathalyzer for marijuana, police would be allowed to use their judgment. Kazan, the former Torrance police officer who supports Proposition 19, said officers already routinely put drivers “through their paces” for drugs that a Breathalyzer can’t detect. In other words, asking the driver to say the alphabet backward and walk in a straight line.
The second issue, marijuana in the workplace, is more complicated. If Proposition 19 passes, employers will not be allowed to discriminate against employees for smoking marijuana unless their smoking “actually impairs” their work performance. However, what level counts as actual impairment is not clear, making it a likely issue for the courts.
Opponents worry that this leaves open a dangerous loophole. For example, they fear that an employer won’t be able to prove that marijuana actually impairs an employee’s work until after a marijuana-related accident happens. Jones is particularly concerned about workers “getting behind the wheel of a school bus or heavy machinery.”
Another concern is that California will lose out on billions in sorely needed federal money by falling afoul of the Drug Free Workplace Act of 1988, which forbids use of a federally controlled substance — such as marijuana in the workplace, actual impairment or not. Legal questions abound: Is it discriminatory under Proposition 19 to forbid marijuana during lunch breaks? What about residual intoxication from eating a pot brownie hours before work?
In theory, courts could interpret “actual impairment” very strictly and say that for some sensitive or dangerous jobs, any marijuana intoxication is too much, which could mean zero tolerance. Or they could interpret it more loosely and set some legal level of intoxication in the workplace short of actual impairment, which would be in line with Jones’ fears of workplace accidents and lost federal dollars.
Dershowitz dismissed those concerns, saying she doesn’t believe that any judge would consider it discriminatory to fire a stoned employee under Proposition 19. “I can’t [say] with certainty what the law will be, but my discussions with employment lawyers and [retired Orange County] Judge James P. Gray, who sat for 25 years, is that it’s ludicrous that that would be the interpretation.”
The Feds
One of most appealing parts of Proposition 19, supporters say, is that commercialization of marijuana can generate tax revenue to help California and its cities pay the bills. The state sales tax would apply, and cities or the state could add extra taxes as well.
Two problems stand in the way of taxation, though. First, the California Legislative Analyst’s Office pointed out that there is no way to predict what sorts of taxes cities and the state will actually enact, if any. Second, marijuana taxpayers would essentially be admitting that they committed a federal crime.
On the first point, Kazan said that although we don’t know for certain, we can likely depend on cash-strapped cities like Los Angeles to levy heavy taxes on marijuana. And on the second point, Dershowitz said, the feds are just not likely to crack down on California. “I don’t see them coming in, guns blazing, prosecuting people for low-level possession,” she said. “The federal government is taking a more hands-off approach to medical marijuana now, [and] they could easily extend that premise.”
From its outward statements, however, the federal government does not appear to be taking Dershowitz’s point. In fact, on Oct. 16, U.S. Attorney General Eric Holder directly attacked Proposition 19 in a letter to several worried former Drug Enforcement Administration chiefs, promising to “vigorously enforce” federal drug laws against Californians who use recreational marijuana, even if use is permitted under state law. The federal government could conceivably sue the state or send in federal agents.
But Dershowitz said she doubts that the feds will come “marching in to thwart the will of the California voters. … Even if they completely shifted their priorities [to marijuana enforcement], they would only be able to have a very scattershot and, ultimately, failing approach,” she said.
Still, many state law enforcement officials also oppose Proposition 19. Los Angeles County Sheriff Lee Baca, for example, has publicly stated that he will enforce federal law on marijuana if Proposition 19 passes. On enforcement, the battle lines are being drawn.
The Marlboro Cartel?
Underlying all the debates about Proposition 19 is a fundamental disagreement about the role of government in private life. On one hand, if we know that legalization will increase the number of people living an unhealthy lifestyle, why vote to legalize it? On the other hand, if most smokers harm nobody but themselves, why should government tell them how to live?
“We have laws that protect people from themselves all the time,” Fontana police’s Jones said. “The helmet law for motorcycles in California, or the laws that say you can’t sniff glue. It is not a right [or] a personal liberty to use a Schedule I drug.”
And now that possession of marijuana has been downgraded to the level of a speeding ticket, Stanford University’s Humphreys said the argument for individual liberty is even weaker. “With no arrests for possession, no court cases, then you have to make me feel sorry for [dealers] who traffic bales of marijuana because they want to make money off of people who are addicted.”
Humphreys acknowledges that, in the past, overly punitive marijuana enforcement may have needlessly ruined smokers’ lives and unfairly targeted minorities (he recently worked under Obama to end mandatory minimum sentences for crack cocaine for the same reason). But he says that marijuana decriminalization has fixed the problem on the smokers’ end.
For Kazan, though, decriminalization does not settle the issue of individual choice and liberty. “Where are you supposed to buy it from? It leaves it in the netherworld.”
Making marijuana legal would indeed cripple the black market for pot in California (although according to an Oct. 12 RAND Corp. study, it would hardly dent the cartels’ profits unless California replaced them as the supplier for the rest of the United States). In its place, a new industry would arise to supply Californians with legal marijuana.
But the price of liberty and choice on marijuana is a “race to the bottom,” Humphreys said. Because cities wield so much power under Proposition 19, each town will cut its regulations and taxes to attract more interest from the marijuana business, he said. Next would come advertising, lobbying and big profits, as happens now with liquor and cigarettes.
“I don’t believe we want with marijuana what we have with tobacco,” said Humphreys. “I’m against Madison Avenue having their marketing people on it, against celebrity endorsements, against labs blending the product to make it more addictive, and [lobbyists] who go to the legislatures with big checks for campaigns,” he added. “All that, you would get with marijuana legalization.”
Dershowitz said she doesn’t believe the state will allow cities to gut their taxes and regulations on the drug. She predicted that “best practices” will eventually emerge from cities and counties that will reveal what level of regulation is just high enough to discourage huge increases in use, yet low enough to cripple the black market.
Humphreys isn’t convinced that the state can toe that line. “I grew up with state alcohol stores. They were nonprofit, didn’t advertise, didn’t sell at night, didn’t sell to drunks, didn’t have sales,” he said. “The alcohol lobby dismantled every single one of those.”
The tobacco industry, of course, has also historically shown great skill at manipulating Congress with its lobbyists. A new wealthy marijuana industry in the style of big tobacco, Humphreys said, would influence local lawmakers “in the first five minutes.”
In other words, though criminal gangs today are making money from marijuana, the alternative might also be unpalatable: “I don’t like the cartels making money, but taking the money from the cartels, multiplying it by 10 and handing it to Philip Morris isn’t exactly attractive either,” Humphreys said.
But the tobacco metaphor doesn’t faze Kazan. “I don’t smoke [cigarettes], I don’t encourage it,” he said. “But I also don’t think it should be illegal, because I’m not scared of people having freedom and making choices.”
To follow our complete coverage of Proposition 19, including an additional article on doctors’ positions on marijuana, visit JewsAndPot.com.
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