Pot proposal's impact depends on federal law LEGALIZING MARIJUANA

Assemblyman Tom Ammiano sits in his district office in San Francisco, Calif., on Friday, Feb. 27, 2009. Assemblyman Tom Ammiano sits in his district office in San Francisco, Calif., on Friday, Feb. 27, 2009. Photo: Paul Chinn, The Chronicle Photo: Paul Chinn, The Chronicle Image 1 of / 1 Caption Close Pot proposal's impact depends on federal law 1 / 1 Back to Gallery

When California became the first state to legalize medical marijuana in 1996, the federal government responded by closing down pot clubs, prosecuting suppliers, threatening doctors who recommended the drug, and successfully battling co-ops and patients in cases that reached the U.S. Supreme Court.

So Assemblyman Tom Ammiano, author of a bill that would make California the first state to legalize personal use of marijuana, is going out of his way to avoid a fight with the feds.

Ammiano's longshot measure gained some traction last week when Gov. Arnold Schwarzenegger said it was "time for debate" on whether the state should allow sales of marijuana and use the tax revenue to help close California's gaping budget deficit. The state Board of Equalization has estimated that the bill's proposed $50-an-ounce sales tax would raise $1.3 billion a year.

But Ammiano, D-San Francisco, isn't proposing to go that far. At least not until the federal government repeals its 72-year-old ban on possession, sale and cultivation of marijuana, or allows states to do so.

Personal cultivation only

If federal law remains unchanged, Ammiano's bill, AB390, would merely repeal California's criminal penalties for personal cultivation and possession of up to 10 marijuana plants. That means no retail sales, no tax revenue and - the assemblyman hopes - no federal raids.

Only if, in the bill's language, "federal law permits possession and sale consistent with this program," would the measure legalize marijuana for adults 21 and older, with regulations like those that apply to alcohol.

The cautious approach "acknowledges, to some extent, the reality we have right now," said Quintin Mecke, a spokesman for Ammiano.

"I'm hard-pressed to imagine the (Drug Enforcement Administration) being that interested in what is in someone's private home," Mecke said. "I think they pay attention to major grow operations."

Federal officials would probably take a dim view, however, of state legalization of storefront sales that defied U.S. law, Mecke said.

Backers cite polls

Nevertheless, some advocacy groups would like to go that route, citing recent opinion polls that show increased support for their cause.

A Field Poll in late April found 56 percent of Californians surveyed in favor of legalizing, regulating and taxing marijuana. Recent national polls have reported more than 40 percent support for the same position, and a nationwide Zogby Poll last week put support at 52 percent.

"In ever-increasing numbers, the citizens of this state are ready to junk our failed prohibition policies, even if that means taking on the feds," said Stephen Gutwillig, state director of the Drug Policy Alliance. The voters, he said, are "way ahead" of public officials on the issue.

If marijuana policy is to change, "it has to be the states moving first," said Bruce Mirken, spokesman for the Marijuana Policy Project. "Just like medical marijuana, the feds will be dragged along by the states."

If legislative efforts fail, Mirken said, "I think you're going to see more and more grassroots enthusiasm for an initiative."

Two years at earliest

Ammiano introduced AB390 in February but says he will not try to bring it to a vote until next year, which means it could not take effect until 2011. And its prospects have been dimmed by the unyielding opposition of police organizations.

"We have alcohol, tobacco, pharmaceuticals. Why on earth would any sane person want to add another mind-altering substance to the available legal array?" said John Lovell, lobbyist for the California Peace Officers Association, California Narcotics Officers Association and California Police Chiefs Association. He said he welcomes the debate suggested by Schwarzenegger because well-informed Californians would oppose the bill.

If enacted, the measure would encounter the same federal-state conflict that arose in 1996, when California voters passed Proposition 215, legalizing the medical use of marijuana with a doctor's recommendation.

Despite the federal ban on marijuana, Prop. 215 remains in effect and has been a model for laws in 12 other states. Courts, however, have ruled that when the state and federal laws collide, Washington prevails.

Supreme Court rulings

The U.S. Supreme Court ruled in 2001 that federal authorities can use their laws to shut down dispensaries that were operating legally under Prop. 215, upholding a position first advocated by President Bill Clinton's administration.

A year later, a federal appeals court rejected, on free-speech grounds, a Clinton-initiated effort to cut off California patients' marijuana supplies by revoking their doctors' federal prescription licenses. That ruling did not affect federal raids or prosecutions, however, and in 2005, the Supreme Court upheld the national government's authority to enforce drug laws against marijuana patients and their suppliers, rejecting states'-rights arguments.

As a presidential candidate last year, Barack Obama said states should be allowed to enforce medical marijuana laws without federal interference. His attorney general, Eric Holder, said on March 18 that the Justice Department would target traffickers who violated both state and federal law, implying that Californians who complied with Prop. 215 would be left alone.

Feds still chasing cases

But federal prosecutors in California have continued to pursue cases against locally licensed marijuana dispensaries. And, as Obama made clear in an online town hall meeting March 26, any change in current federal policy is limited to the medical use of marijuana.

Responding to numerous questions about raising tax revenue by legalizing marijuana, the president said jokingly, "I don't know what this says about the online audience." Then he added, "No, I don't think that is a good strategy to grow our economy."

Mirken, of the Marijuana Policy Project, said it will take time to persuade the federal government to let the state go its own way.

But if a bill like Ammiano's becomes law two years from now, as Obama looks ahead to a re-election campaign, Mirken said, administration officials contemplating a crackdown might be asking themselves, "Do we really want to anger California?"