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A Fiscal Analysis of Marijuana Decriminalization



I. 1972: Prelude to Decriminalization

Following the enactment of The Wobbler and the revisions in Section 17 of the Penal Code, California's marijuana laws were to remain unchanged until 1972, when certain events occurring outside of the Legislature heralded the beginning of a noncriminal approach to marijuana possession and use in the state.

The first external force to impact upon the Legislature was the Final Report of the National Commission on Marijuana and Health, appointed by President Nixon to study all aspects of marijuana in American society and to recommend public policy approaches and guidelines. The Commission was A conservative body of thirteen members, nine of whom were appointed by the President and two each by the U.S. Senate and House of Representatives, and it was widely assumed that the Commission would reinforce and rubber-stamp the harsh "War on Drugs" approach toward marijuana and drug use which the White House had been advocating. Thus, the Commission's Final Report made headlines across the country when it recommended decriminalizing marijuana possession and use.

Decriminalization was a term essentially coined and popularized by the National Commission. Decriminalization entailed a public policy of discouragement of marijuana use,. by keeping cultivation, sale and other non-possessory offenses illegal, while removing criminal penalties for simple use and possession of the substance. In essence, it aimed at eliminating the harsh social consequences brought about by labeling marijuana users "criminal" while concentrating the resources and sanctions of the criminal law on commercial traffickers. The report of the National Commission was to become the Bible of the marijuana law reform movement for the remainder of the '70s.

The second major event to force a re-examination by the Legislature of the state's marijuana laws was the 1972 California Marijuana Initiative, which appeared on the November ballot that year as Proposition 19. Founded by Foster City attorney Leo Paoli, Proposition 19 was a measure which proposed totally removing criminal penalties for the adult possession and cultivation of marijuana for personal use. Though defeated, the measure garnered 34% of the vote and provided new impetus for legislative efforts to repeal felony penalties for marijuana possession.

Significantly, the California Legislature passed two major bills in 1972 affecting marijuana penalties, both of which were clearly influenced by the statewide demonstration for marijuana law reform symbolized by Proposition 19.

The first, Penal Code 1000, commonly known as the "drug diversion program," was sponsored by, among others, then-State Senator George Deukmejian, in order to provide a mechanism for diverting first-offenders from the criminal justice system. Under P.C. 1000, individuals charged with various drug possession offenses could have all criminal charges against them dismissed, provided they agreed to participate in a drug education and/or treatment program. Supported by liberals and conservatives alike, the drug diversion bill was signed into law by Governor Ronald Reagan.

Also passing the Legislature in late 1972, following the vote on Proposition 19, was a bill sponsored by Beverly Hills Assemblyman Alan Sieroty which would have repealed the wobbler and made possession of marijuana for personal use a straight misdemeanor. The Sieroty bill was vetoed by Governor Reagan. Another Sieroty misdemeanor bill passed both houses of the Legislature in 1974, but was also vetoed by Governor Reagan.

The impact of Proposition 19 was also noticed by Senate Democratic leader George R. Moscone, who represented San Francisco, which was the only county to pass Proposition 19. Recognizing that a penalty reduction bill had no chance of enactment as long as Ronald Reagan was governor, Senator Moscone instead proposed the appointment of a state commission, analogous to the National Commission on Marijuana and Health, to study California's marijuana laws and recommend appropriate public policy changes. Originally proposed as a state commission, Moscone realized that Governor Reagan would be able to block the formation of such a commission. Thus came into being, alternatively, the California Senate Select Committee on the Control of Marijuana.

The Select Committee, commonly referred to as the Moscone Committee after its chairman, conducted the first major study into marijuana law enforcement in the state, with particular emphasis on the social and fiscal costs of the laws. Among its findings were the facts that in the early 1970s, statewide marijuana arrests were approaching almost 100,000 annually, with enforcement costs averaging well over $100,000 million per year.

Finding that the overwhelming majority of marijuana offenses (approximately 90%) were for simple possession, the Moscone Committee recommended in its Final Report a serious re-ordering of law enforcement priorities by the Legislature. The Final Report of the Select Committee noted that:

"The marijuana laws as they pertain to simple possession for private adult use should be amended to abolish the felony offense. The Legislature should adopt a program of decriminalization, making simple possession of marijuana for private adult use an infraction, if anything."

1975: Enactment of Senate Bill 95

Following an unsuccessful attempt in 1974 to implement the decriminalization recommendations of the Select Committee, which was essentially a "trial run" with no expectation of actual success, Senator Moscone introduced Senate Bill 95 which was heard and enacted by the Legislature in 1975. This bill was signed into law on July 9, 1975 by Governor Edmund G. Brown, Jr., making California the fifth state (out of an eventual total of eleven) to end the arrest and jailing of persons charged with possession of small amounts of marijuana for personal use.

As originally introduced, S.B. 95 would have made possession of not more than three ounces of marijuana an infraction, punishable by a maximum fine of $100.00. There was political resistance, however, to both the three-ounce standard and also to labeling the offense an infraction, which opponents of S.B. 95 contended sent too "permissive" a message to the public. The bill was therefore amended by the author in the Senate Judiciary Committee to make possession of one ounce or less a citable misdemeanor, rather than an infraction, in order to split law enforcement opposition to the bill and pick up the necessary votes to pass the measure out of committee.

The amendment changing the offense from an infraction to a misdemeanor resulted in a change of label more than anything else, in that an infraction was also a crime in California, and S.B. 95 created essentially a new category of low misdemeanor which was sui generis and was treated like an infraction in all critical respects. Possession of an ounce or less became a mandatory citable misdemeanor offense, punishable by fine only, not to exceed $100.00, -with no arrest, booking or jail.

Under S.B. 95, possession of more than one ounce of marijuana also became a misdemeanor, punishable by imprisonment in the county jail for not more than six months, by a fine of not more than $500.00, or by both such fine and imprisonment. In such instances, the arresting officer has the discretion of either issuing a citation or taking the defendant into custody.

S.B. 95 also revised the penalties for both furnishing without consideration and transporting not more than one ounce of marijuana, treating such offenses as simple possession, rather than as felonies. Giving away or transporting more than one ounce of marijuana, as well as cultivation, sale and possession of-any amount with intention to sell remained as felonies under S.B. 95.

Prior California law did not distinguish among various forms of marijuana based on form or potency, treating the natural cannabis plant, synthetic THC and hashish as the same substance. S. B. 95 distinguished between "marijuana" and "concentrated cannabis", the latter referring to the separated resin, whether crude or purified, obtained from marijuana. As to concentrated cannabis, essentially hashish or hash oil, the prior wobbler penalties remain in effect. This legislative distinction was brought about by law enforcement opposition to eliminating felony penalties for possession of hashish or hash oil.

One of the critical reforms embodied in S.B. 95, which resulted directly from the legislative "trade-off" which came about when the bill was amended to make possession of small amounts of marijuana a citable misdemeanor rather than an infraction, was a new record.-purging provision unlike anything in existing California law. This provision ended the prospect of life-long criminal records for individuals arrested and/or convicted of marijuana possession and other marijuana misdemeanor offenses and contained retroactive provisions for offenses occurring prior to January 1, 1976, when S.B. 95 took effect.

Under these provisions as later amended S.B. 95 required the destruction of records of any court or public agency pertaining to an arrest or conviction for possessing marijuana, other than concentrated cannabis, or for giving away or transporting not more than one ounce of ordinary marijuana where the arrest and/or conviction occurred after January 1, 1976, in which case such records could not be kept beyond two years from the date of conviction, or from the date of arrest if there was no conviction. No civil or collateral disabilities or penalties could attach to an individual as a result of a prior marijuana misdemeanor offense, once the records are destroyed or two years had passed.

The penalty provisions of S.B. 95 are non-recidivist, in that repeat offenders are not subject to any greater penalties than first offenders. S.B. 95 provided, however, that individuals convicted more than three times within a two year period shall be subject to the provisions of P.C. Section 1000.1 and 1000.2 (the drug diversion program). No jail penalties or increased fines can be assessed against repeat offenders.

In summary, in addition to repealing various minor marijuana offenses, S.B. 95 adopted six major forms affecting California's marijuana laws, which together have had a major impact on the fiscal costs of marijuana law enforcement in the state and in reducing the legal, social and fiscal costs of marijuana law enforcement:

  1. No arrest or booking for individuals apprehended in possession of small amounts of marijuana;
  1. No jail or incarceration for persons convicted of possession of small amounts of marijuana;
  2. Furnishing of small amount of marijuana for no consideration is treated as simple possession, not sale;
  3. Transportation of small amounts of marijuana is treated as simple possession, not felony transportation;
  4. Elimination of life-long criminal records for marijuana possession arrests and convictions, and placing a two-year limit on the retention of such records and the use of such records. against individuals arrested and convicted of specified offenses;
  5. Abolition of recidivist penalties for simple possession, giving and away and transporting small amounts of marijuana.

The actual fiscal savings brought about by S.B. 95, and the impact which this reform legislation has had on California's criminal justice system, have been dramatic, as evidenced by the analysis set forth in this study.


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