In my last post, I signed off with a promise to begin the conversation about economic barriers. This is not an article about economic barriers. Consider this article a bonus. On April 14, 2015 the California Craft Cannabis Initiative was filed, the first recreational cannabis initiative filed in California. Now, before you get too excited, just because the initiative is filed does not mean it will be on the ballot in 2016. The proponents of the initiative still have a quite a few hoops to jump through before that happens. Still, this is very exciting for all of us at DLP because we have the language of an actual California initiative to consider and discuss. Better yet, an initiative that addresses many of the topics being covered by the Drug Law and Policy Blog.
The California Craft Cannabis Initiative (CCCI) came with a few surprises. Sure, there were the well-considered regulations tailored to meet the Cole memo but there are also a few more radical ideas that you don’t see in Colorado’s highly regarded regulations. For example, there is no local control for growing your own cannabis in the CCCI (meaning more conservative counties would not be able to restrict their residents from growing at home), there is a “craft” distinction for those growing less than 100 plants, and craft cultivators may label their product according to the appellation of the region in which it was grown (if that appellation is on the official list that would be compiled by the commission).
There is a provision allowing for the California Cannabis Commission, which would be created by the language of the initiative, “to develop a licensing system by which cannabis may be purchased, sold, served, consumed, and otherwise disposed of in licenses premises in a manner similar to licensed premises serving alcoholic beverages.” This is another departure from Colorado’s regulatory choices. It is exciting to see some outside of the box thinking within the initiative. Contrary to the apprehension of some, allowing “bud pubs” could go a long way to address public safety concerns.
Most relevant to my coverage at the Drug Law and Policy Blog were the licensing and criminal record-related provisions. Specifically, the CCCI vests the commission with the authority to issue licenses and charge related fees. This can include a criminal history check, but “prior criminal history relating to cannabis use, distribution, cultivation, manufacture, or other cannabis-related activity, regardless of jurisdiction, shall not be considered in the granting or denying of a license pursuant to this chapter.”
This proposed regulation is much more forgiving than Colorado’s current licensing scheme, which prevents individuals with “Controlled Substance felony convictions” within ten years of their application date from receiving retail marijuana licenses. There is an exception for felony convictions for possession or use of marijuana, but not for distribution and cultivation. The CCCI includes all marijuana-related offenses in its explicit exception to the ability to check criminal history. It appears the drafters of this initiative understand the value in keeping barriers for those currently working the black market to a minimum.
Additionally, and more astounding in its breadth, is that the CCCI establishes the entirety of Chapter 6.7, The Craft Cannabis Act, as retroactive. The language is very clear in the initiative, stating: “this Chapter shall be retroactive.” Cannons of statutory interpretation apply to voter initiatives and the intent of the statute is determined by examining the plain language. If the CCCI were to be passed by the voters, it would be clear based on the plain language of the initiative that the voters intended the initiative to be retroactive.
Now, the retroactivity would apply to the whole chapter, including the portion of the CCCI that legalizes cannabis in California: “Notwithstanding any other law, the cultivation, processing, transportation, distribution, sale, possession, and use of cannabis is authorized by persons 21 years of age or older.” By establishing the legalization of cannabis in California as retroactive, the drafters of the CCCI have opened the door for attempts to expunge records and potential resentencing of those serving sentences for marijuana-related crimes.
Proposition 47, which passed last November and amended portions of the Penal Code to make specified crimes misdemeanors instead of felonies under California law, also applied retroactively. Unlike the CCCI, Proposition 47 specified the methods by which people currently serving sentences and people with a criminal history based on convictions of these crimes could be resentenced. After voters approved the initiative, requests for resentencing and expungement of criminal records flooded the already cash-strapped court system. Prop 47 allows for a three-year window for people to apply for resentencing but provided no funding for the courts or public defender offices to cope with the workload.
Additionally, trial courts are having to decide issues not specified within the statute such as whether an individual can have their DNA profile removed from the state’s offender database or if Prop 47 applies to juveniles. Ultimately, these cases will end up at the appellate level, with the California Supreme Court cleaning up any circuit splits. The California Supreme Court has already granted review to two cases involving the effect of Prop 47 on California’s “Three Strike” laws because circuits are currently interpreting Prop 47 as not retroactive in its application to Prop 36. The language of Proposition 47 did not specify that the initiative applied retroactively to findings made under Proposition 36, the Attorney General’s office has argued that the intent for Prop. 47 to apply retroactively cannot be inferred from the voter information guide, while defendants and academics argue that voters’ intent to decrease the prison population and reduce spending on incarceration is clear.
What can be learned from Prop 47? That even more specificity is required for things to run smoothly? Or that there will always be complications that cannot be planned for? Either way, if the CCCI were passed, there would be a lot to sort out. The CCCI invests the commission with “the power to make all regulations necessary and proper to effectuate the will and intent of the people in enacting this chapter, and may carry out or delegate the enforcement and administration of this chapter to other public agencies.” Among those regulations would be those necessary for effectuating the retroactivity of the legalization of cannabis.
Creating the necessary and proper regulations would be in addition to the specified tasks delegated to the commission, which include: issuing licenses, ensuring all cannabis sold is carefully inventoried and accurately labeled, regulating testing of cannabis and cannabis products, and terminating business operations of any business that is endangering public safety. First, the Lieutenant Governor must select the commission. The language of the initiative specifies selection must occur before January 1, 2017. From there, the commissioners have a year to begin issuing permits for the sale and cultivation of cannabis. But before issuing permits, the commission will have to make regulations to effectuate that task.
That is a lot of work. Hopefully, those with criminal records wouldn’t be put on the back burner during this time, where their criminal records could prevent them from receiving financial aid or public housing. Looking at what happened with Prop 47 we know that the courts would likely struggle with the additional caseload and lack of resources, a lesson the commission should consider if CCCI were passed.
Overall, the drafters of the CCCI seem to have considered those most affected by the prohibition of cannabis in producing this initiative by banning the commission from considering marijuana-related offenses in granting licenses and making the legalization of cannabis retroactive. We may never know how this would play out; this initiative may never get on the ballot and if it does, may not be passed by voters. This won’t be the only initiative we see in California for 2016; we will have to wait and see how other initiatives measure up.