Chronicle editorial suffers from chronic lapses in logic

This San Francisco Chronicle editorial opposing Prop. 19 contains a barn-sized factual error or two, but its major flaw is a type of marijuana myopia that can see potential problems with legalization while turning a blind eye to the deadly consequences of cannabis prohibition. Let's review:

"Even Californians who support the legalization of marijuana should be extremely wary of Proposition 19. This is a seriously flawed initiative with contradictions and complications that would invite legal chaos and, more than likely, fail to deliver its promised economic benefits.

"We agree with the architects of Prop. 19 that the "war on drugs" -- especially as it applies to marijuana -- has been an abject failure. Laws against personal possession are widely ignored, they are enforced unevenly and they divert law enforcement and the courts from more pressing priorities. The result is a flourishing underground economy that allows marijuana to escape taxation and regulation while bestowing profits on criminal enterprises.

"If this were simply a referendum on the status quo, and the ability of a 21-or-older Californian to possess an ounce or less for personal use, it might be an easy "yes" vote. It is not. It is a law that goes too far in endowing rights for the cultivation, possession and use of marijuana."

OK, let's take a deep breath. On the one hand, the Chron opines that the drug war is an utter failure and that criminal enterprises flourish in the black market. In the next graf, it suggests that legal possession thus makes sense but that small-scale home cultivation and retail sales of cannabis -- two potent tools against the black market -- are two steps too far. Hmmm...

"Among the specific problems:

"Workplace: A nondiscrimination clause would prevent employers from firing or disciplining workers who used marijuana unless an employer could prove that job performance was impaired. Pre-employment testing would be banned."

Factual error No. 1, and it's a big one. Nothing in Prop. 19 changes labor laws to prevent pre-employment drug testing, and it explicitly states that all existing employer rights shall be retained. What the Chronicle might have said instead is that Prop. 19 would force a re-examination of corporate drug-testing mania and whether it's fair to discriminate against a large part of the workforce. Impairment should be the only standard that permits employer drug testing, in my view, but that's a debate for a different time and a different law; it's simply not applicable to Prop. 19.

"Conflicts with federal law abound. For example, the feds require operators of planes, trains, trucks and buses to be removed from their jobs if they test positive for any narcotic." And you can expect such regulations will remain in force, especially as they apply to transportation and public safety occupations.

"Tax and regulation: The measure establishes no state controls over distribution and product standards; it does nothing to help cure the state's budget deficit. A seriously gridlocked Legislature, which kept its distance from the medical marijuana mess, would have to decide whether to take on such issues."

Correction: It's prohibition that does nothing to cure the state's budget deficit. Prop. 19 isn't a cure-all, but a few hundred million is better than nothing with the potential for much more as legal markets mature. As for the state Legislature, if they don't like Prop. 19 they'd better get off their dead asses and give AB 2254 a fresh look. Voters tend to take things into their own hands when lawmakers don't, and we'll be having this same debate in 2012 if Prop. 19 fails.

"In the meantime, Prop. 19 allows the 58 counties and hundreds of cities to come up with their own taxation and regulatory schemes. In this critical element of legalization, Prop. 19 is more akin to the chaotic approach taken with medical marijuana than to the heavily taxed-and-regulated treatment of alcohol."

I've never heard such doublespeak as the "chaos" label applied to local regulation. Local politicians like to whine loudly about state and federal mandates that tie their hands and make their jobs more difficult. But when it comes to medical marijuana, they start whining that federal law reigns supreme and/or that the state has dropped the ball. Politics is never pretty, and local medipot laws are a reflection of that fact. But they're also a pretty good indicator that local government can get the job done, unlike their state and federal counterparts.

"Cultivation: Property owners throughout the state would have a right to establish a 5-by-5-foot plot of cannabis plants for personal consumption - a right that could not be usurped by local ordinance. Anyone familiar with the stench and potential height of marijuana plants might pause at the thought of their proliferation in the neighborhood."

It's not a given that local governments couldn't ban cultivation; just take a look at the cultivation ordinances taking shape that limit or ban Prop. 215 grows. More likely it will become a zoning issue, sorta like chickens. Chickens are legal to possess and cultivate under state law, but they're generally not allowed in densely populated areas because of nuisance noise and odors. CCRs offer another option.

"Transit: The proposition does not affect current laws against driving while impaired by cannabis, but it does allow passengers to smoke in a moving vehicle, proponents acknowledge. This is another element of 219 that that defies common sense."

Smoking while driving is an invitation for a DUI, and there's nothing preventing the Legislature from addressing this in follow-up legislation, just as it did with SB 420 to clarify Prop. 215. Plenty of people smoke and drive under existing law, sad to say. Prop. 19 revenues could potentially be earmarked for driving safety campaigns or law enforcement. Don't just throw up your hands, people.

"The experience of Proposition 215, the 1996 initiative that legalized the use of medical marijuana, illustrates the danger of voting for a concept instead of the language of a ballot measure. The loosely drawn Prop. 215 continues to be a nightmare for many communities. Los Angeles is trying to shut down hundreds of dispensaries. Even the laid-back coastal towns of Santa Cruz and Arcata found themselves putting moratoriums on new dispensaries."

Another pot shot at Prop. 215, which still gets no respect 14 years after its passage. Why that law gets blamed for the fast rise of dispensaries, instead of the federal policy that effectively banned them for so long, is a mystery to me. It would be far more accurate to blame the state Legislature for failing to take leadership on this issue, leaving cities and counties to twist in the wind.

"Fresno County supervisors this week voted to ban outdoor medical marijuana gardens after four reports of gunfire -- including a fatal shooting by a homeowner who claimed an intruder was out to steal his pot.

"If Prop. 19 were to pass, such outdoor gardens would not be limited to ostensible medical-marijuana patients. They could show up in any backyard, in any town -- and local governments would be powerless to stop them."

Again, it's not a given that local governments couldn't set reasonable limits on cultivation, but this is where the Chron misses the big picture. Small-scale local cultivation is preferable to large-scale illegal grows on public lands that enrich drug cartels and wreak environmental havoc. It also goes to the heart of the profit incentive that attracts the criminal element. By increasing the supply of marijuana grown by Californians for Californians, the demand for illicit pot drops along with the profit incentive. Only when home cultivation becomes commonplace will pot gardens cease to be targets.

"Don't vote the slogan or the concept. Inspect the details. No on 19."

Except for the last part, I agree. Inspect the details. Think about local vs. state or federal control of legal cannabis, and what types of tools are needed to fight drug violence. Prop. 19 is a better deal than the Chron editorial board suggests.