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We Can Do Better

The arguments against Measure 91

In 2012 residents of Colorado and Washington bypassed their state legislatures and voted to legalize cannabis for recreational use, taking the first steps towards ending 77 years of prohibition. This one act changed the entire political landscape. For the first time a majority of Americans support legalization, and many states are already discussing change at the policy level. Measure 91, however, undercuts two of the central goals of legalization: eliminating the black market, and reducing the role of law enforcement in drug policy. As a result, even if it passes Measure 91 is bound to fail.

One of the primary reasons is the way business licenses would be granted. M91 gives the Oregon Liquor Control Commission complete control over cannabis regulation, including the sole authority to issue licenses for cultivation and sales. Furthermore, it allows the OLCC to deny a license to anyone with a marijuana conviction in the past five years, or two convictions total, which includes a large number of people currently operating in the black market. 

People are unlikely to stop working in the underground economy unless they’re offered similar opportunities in the legal one — the creation of much touted “green” jobs will be mostly low-paying service sector work, hardly a replacement for the higher income people currently enjoy as a grower or seller on the black market. And if decades of failed drug policy has demonstrated anything, it’s that the black market cannot be stopped by law enforcement.

There is also enough ambiguity in the wording of Measure 91 that the OLCC could technically deny anyone a license. Specifically, it would allow the OLCC to deny a license to any person they consider “not of good repute and moral character” or “in the habit of using alcoholic beverages, habit-forming drugs, marijuana or controlled substances to excess.” Determining whether or not a person is of good moral character or has a substance abuse problem is a highly subjective process that should not be left to five people, in particular five people with no democratic accountability.

Despite ostensible legalization, M91 maintains most of the criminal penalties for illegal possession, cultivation and sales. While the measure would allow up to four “mature” plants per household without a license, five to eight plants would be considered a Class B misdemeanor, punishable by up to six months in jail and a $2,500 fine. Just one additional plant (nine in total) changes the violation to a Class B felony, punishable by up to 10 years in prison and a $250,000 fine. Selling any amount without a license is also a Class B felony.

For all the talk of protecting minors, the penalties are even more severe for individuals under 21. Growing any amount would be considered a Class B felony. Possessing seven or more grams of homemade solid product would be a Class C felony – that’s literally the equivalent of a few brownies. In addition, their drivers licenses could be suspended for up to one year if they’re caught attempting to purchase cannabis from a licensed store.

Far more egregious, however, is the penalty for giving cannabis to an individual under 18. Regardless of the amount involved, if the person convicted is at least three years older than the minor, he or she would be charged with a Class A felony, punishable by up to 20 years in prison and a $375,000 fine. In other words, an 18-year-old could spend 20 years in prison for giving a gram of cannabis to a 15-year-old. In comparison, the first offense for giving alcohol to a minor is a Class A misdemeanor, punishable by a minimum fine of $500. The second offense is a $1,000 fine. Only after a third conviction does the defendant receive mandatory jail time – a minimum of 30 days.” This isn’t public policy, it’s madness.

Legalization is inevitable at this point, but the form it takes has yet to be determined. If we truly want to end the black market and stop sending people to prison, we need to take a different approach. Voters should reject M91 and support efforts towards a better initiative. In the interim we can pressure state and local representatives to expand decriminalization, which would significantly reduce the burden on the criminal justice system and protect people from the trauma and stigmatization of prison. It’s tempting to vote “yes” on M91 after such a long period of prohibition, but the social and economic gains from a sensible drug policy will be well worth the wait. Be patient Oregon — we can do better.