California MCLR Initiative Makes It More Difficult to Jail Adults Who Sell Marijuana to Kids


UPDATE: I mistakenly reviewed the text from what was the version 5 of MCLR. I have updated the text of this article in italics to reflect the changes found in the version 7 currently being circulated. I apologize for the error.

You may have heard that there is another marijuana legalization initiative in California that isn’t the one supported by billionaire Sean Parker and the major drug policy organizations. It’s called the Marijuana Control, Legalization, & Revenue Act (MCLR) and its supporters tout the fact that it’s the first legalization measure that can be printed on a single sheet of paper, petition space, summary, and all.

Today I’m preparing my hyperlinked documentation of MCLR , to go along with the ones I’ve done for California’s Adult Use of Marijuana Act (AUMA), as well as the Campaigns to Regulate Marijuana Like Alcohol (CRMLA) in Nevada, Arizona, Massachusetts, and Maine. That’s when I discovered a fatal electoral flaw in the MCLR.

If MCLR passes, it would be impossible difficult to do anything but fine an adult who sells marijuana to a kid.

Let’s dispense with the disclaimer that I am not a lawyer. However, I have read a whole lot of state initiatives and statutes and I believe I’m correct in this interpretation.

Section 7 of MCLR states: “Sections 11357, 11358, 11359, 11360, 11361, and 11485 of the Health and Safety Code are hereby repealed.”

There are some in the movement who criticize legalization initiatives as not being “True Legalization™” because they retain existing criminal penalties while merely providing windows of lawful behavior within a certain range. For instance, Washington State legalized possession of an ounce of marijuana, but the felony that already existed for possessing more than 40 grams is still on the books.

Therefore, I can understand why MCLR chose to repeal Health & Safety Code (H&SC) sections 11357 [marijuana possession crimes], 11358 [marijuana cultivation crimes], 11359 [marijuana sales crimes], 11360 [marijuana trafficking crimes], and 11485 [asset forfeiture] – nobody would go to jail or lose their stuff over a plant — but why repeal 11361?

Here are the statutes MCLR would be repealing. When you read section 11361, you’ll find the following (trimmed for brevity):

“Every person 18 years of age or over who… unlawfully sells… any marijuana to a minor under 14 years of age… shall be punished by imprisonment in the state prison for a period of three, five, or seven years.”

How would the MCLR campaign respond to the inevitable attack ad that states, factually, that passing MCLR would legalize end the mandatory imprisonment of adults selling marijuana to children under 14? If section 11361 is repealed, there is no statute on the books to punish adults who sell marijuana to kids!

Perhaps the response is found in section 3, where MCLR creates a new division of the business code. There, in new section 27400, “The Legislature shall implement this Act with one or more bills…” Certainly, we would expect the California legislature to pass bills making it illegal for adults to sell marijuana to kids.

But in new section 27500, “Violations of any statute or regulation enacted or promulgated to implement this Act shall not constitute a felony and shall not be punished by imprisonment.”

The worst punishment the legislature could invoke for dealing marijuana to kids would be a misdemeanor with a fine.

The punishment MCLR proposes for selling marijuana to minors would be the punishment an adult receives for selling cigarettes to minors, as shown in new section 27500:

Except as otherwise authorized by law, any person who knowingly sells, gives, or in any way furnishes cannabis products to a person under the age of 18 years, and any person under the age of 18 years who purchases, receives or possesses any cannabis or cannabis products, shall be subject to the penalties set forth in Penal Code 308 as if the cannabis or cannabis products were cigarettes.

Here is the Penal Code 308 language authorizing punishment:

Every person, firm, or corporation that … sells … to another person who is under the age of 18 years any tobacco… is subject to either a criminal action for a misdemeanor or to a civil action … punishable by a fine of two hundred dollars ($200) for the first offense, five hundred dollars ($500) for the second offense, and one thousand dollars ($1,000) for the third offense.

Here’s the explanation from the California Department of Public Health’s pamphlet, “Tobacco Control Laws That Affect Retail Businesses Updated 2013”

Penal Code Section 308 – It is a crime to sell, give, or in any way supply tobacco products and paraphernalia to minors. Signs with the “1-800-5 ASK-4-ID” phone number must be posted at each cash register. WHAT are the penalties? Storeowners and/or clerks who sell to minors may be charged with a misdemeanor or may be fined: $200 for the first violation, $500 for the second violation, and $1,000 for the third violation.

So the charge may be a misdemeanor, but could also be mere civil fines. Charging that misdemeanor will require the prosecutor to use statutes regarding the endangerment of the welfare of a minor, and that will require proving harm or immenent harm to the child.

I understand repealing all these criminal penalties and making jail for marijuana impossible sales to minors much more difficult. Even the laws regarding providing alcohol to minors are misdemeanors with $1,000 fines only, unless the kid causes injury to someone else when he or she is drunk. MCLR is really regulating marijuana like alcohol.

But the problem is marijuana ain’t alcohol and legalizing it requires the votes of a majority of Californians, most of whom don’t use marijuana and know very few facts about it. When they hear that “MCLR will let weed dealers at your child’s middle school go free with a slap on the wrist!” and “MCLR repeals mandatory felony prison time for people who deal weed to kids, replaced with a mere civil fine or misdemeanor!” they will reject that initiative.

There is this weird idea among some True Legalizers™ that AUMA is a bad initiative because it is 62 pages long. This has led to the creation of this one page MCLR that touts its brevity as a major selling point. (You know, like the eleven-line Prop 215, whose brevity has led to numerous conflicting judicial interpretations, local bans in wide swaths of California, and even 20 years later is still being litigated and regulated.)

The problem is that law can be complex and sometimes, it requires a few pages of text to make clear what the initiative intends to do and what limitations and powers should be assigned to the government regulating that law. In trying to keep an initiative artificially short, major questions are left unanswered and blanket repeals have unintended electoral and legislative consequences.