You could fool yourself into thinking marijuana legalization was like breathing air or wearing socks: one of the few things most Americans could be trusted to agree upon.
Since 2012, nearly every major cannabis-related ballot measure put before voters has won handily; in that time, aside from a few outliers like a publicly funded lawsuit challenging voter-approved legalization in South Dakota, politicians have not even bothered to attempt an errand so hopeless as curtailing cannabis’s winning streak.
That may finally be changing. Fed up with enormous illegal grows that keep proliferating in his rural Southern California district, state Assemblyman Thurston “Smitty” Smith (R-Apple Valley) introduced a bill last week that, if passed, would roll back part of the state’s voter-approved marijuana legalization law and make growing more than six cannabis plants a felony again.
And though this effort as written is almost certain to fail, the idea of sending the cops after cannabis growers again is gaining traction—including with Gov. Gavin Newsom, legalization’s erstwhile poster boy.
Passed on Election Night 2016, California’s Adult Use of Marijuana Act eliminated almost all cannabis-related felonies. The only nonviolent weed-related crimes that can land you in state prison involve selling pot to a minor. So the maximum penalty for growing 100 plants, 1,000 plants, 10,000 plants—pick a number! The only limit is your imagination—is a couple of misdemeanors and a year in jail.
It’s this “soft on crime” approach (which a majority of his constituents approved) that law enforcement and, dutifully, cop-friendly lawmakers like Smith are blaming for the proliferation of enormous grows in his district.
Contacted for comment, Smith’s office did not provide a statement by publication time. In a brief press release announcing the bill, Smith said illegal growers are “operating with impunity, knowing that the law allows them to grow with barely a hindrance.”
“For far too long, Sacramento has been soft on crime, and the illicit market has exploded with massive unlicensed grows popping up all around the state,” he said.
Not for nothing, Smith has been a reliable cheerleader for police raids on unlicensed cannabis growers in his district, including a five-month-long-and-counting caper called “Operation Hammer Strike” by the San Bernardino County Sheriff’s Office that only recently netted 15 arrests.
In this, he’s right: there are illegal grows all over the state. And both the marijuana industry and Newsom, an early endorser of legalization, have blamed these grows for the overtaxed legal industry’s struggles.
But who cares? As written, Smith’s bill is almost sure to fail. He needs a two-thirds majority in the state Legislature to amend a ballot initiative. As a conservative Republican who backed Newsom’s failed recall last August, up against a Democratic supermajority in Sacramento—where, according to several sources, the unofficial maxim on public safety is “no new crimes”—he is very unlikely to get it.
However, Smith’s effort at undoing a part of marijuana legalization represents a growing discontent with how marijuana legalization has played out. Until now, this frustration has been mostly from law enforcement.
That said, Smith’s bill could be seen as a starting-off point? What if instead of seven plants triggering a felony, it were 100? What about 1,000? Surely any reasonable person could agree that acres-large weed grows need a license—and that if they don’t have one, the police should be involved!
That’s the dangerous logic that could see California start imprisoning people for weed again. And certain influential thought leaders are on board.
By now, most California cannabis industry insiders and observers (and even some lawmakers) agree that the state overtaxes weed. From a regressive cultivation tax to a punitive excise tax to local taxes as well as state sales taxes, for every $40 bag of weed, consumers can expect to fork over 40 percent to the taxman.
So tax reform is one proposed technique to save legalization. Another technique is to send the cops after the illegal market again.
In an interview with CalMatters, Keith Humphreys, a professor of psychiatry at Stanford University and a renown drug-policy expert, said cracking down on unlicensed operators—the helicopters, the raids, all the old ways—was “more sensible than messing with taxes.”
Newsom might be thinking similarly. For one, he’s already sicced the authorities on weed, sending his personal army—the state National Guard—after illegal growers. In the same CalMatters article, Newsom’s “weed czar,” state Department of Cannabis Control Director Nicole Elliott, said that legalization’s problems are “not tax alone.”
That’s worrisome to legal growers like Johnny Casali, the proprietor of Huckleberry Hill Farms in the state’s Emerald Triangle.
Smith is “obviously supporting the Gavin Newsom theory: that the reason why the California market is failing is because of the black market,” he said. “That’s their way of really keeping the public from really understanding that it’s the taxes causing the downfall of the California market.”
“They can bust every illegal grower, and that will not help the legal businesses that are struggling,” he added. “I really want to believe and trust the state of California to do the right thing, to protect me, and have my back here.”
