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

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7 of MCLR states: “Sections 11357, 11358, 11359, 11360, 11361, and 11485 of the Health and Safety Code are hereby repealed.”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

I understand repealing all these criminal penalties and making jail for marijuana impossible. 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!” 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.