The supporters of Prop 19 tout the measure as a saving grace for California and a civilized gesture of republican responsibility that will draw marijuana out of the shadows and into the state-controlled light of day. Legalizing the cultivation, sale and limited possession of marijuana would, they argue, lessen the financial burden on the state’s judicial and penal systems and raise sorely needed funds through taxation (not to mention that it would weaken the ill-conceived "war on drugs," which devastates lives with lopsided force along lines of class and race). There’s just one little catch: even if Prop 19 passes, marijuana cultivation, possession and sale will still be illegal according to the federal Controlled Substances Act.
In 2009 the Justice Department signaled that it would turn a blind eye to state-compliant medicinal marijuana operations, but Attorney General Eric Holder recently made it clear that activities related to recreational marijuana will continue to be prosecuted. As Holder put it in an October 13 letter to a group of former heads of the Drug Enforcement Administration, who requested that the federal government take legal action to void Prop 19, "We will vigorously enforce the [Controlled Substances Act] against those individuals and organizations that possess, manufacture or distribute marijuana for recreational use, even if such activities are permitted under state law."
Could the Justice Department nullify all the potential boons of Prop 19? No, says Stephen Gutwillig, California director of the Drug Policy Alliance. "The reality is that the federal government has neither the resources nor the political will to undertake sole—or even primary—enforcement responsibility for low-level marijuana offenses in California," he wrote recently. In other words, without assistance from state and local law enforcement, the Justice Department doesn’t have the means to follow through on Holder’s pledge. That might be why Los Angeles County sheriff Lee Baca recently promised to help the feds by continuing to enforce prohibition laws even if Prop 19 passes. Baca’s October 15 announcement may also have been motivated in part by politics, and it seems to have had an effect. Poll numbers on Prop 19, which had been showing support consistently ahead of opposition in recent months, suddenly began shifting in the negative direction.
In a conversation with The Nation, Hanna Dershowitz, attorney for the University of Southern California’s Institute for Creative Technologies and a Prop 19 advocate, called Baca’s statement "alarming and disturbing," and argued that a California court would not accept a charge from his department unless it violated state or local law. "That an officer of the law would state affirmatively that he’s going to choose which laws he wants to enforce… that’s not his job, and that’s not his right," Dershowitz said.
San Francisco-based defense attorney Zenia Gilg made a similar argument, citing People v. Tilehkooh, a California Court of Appeals case in which the court ruled that a probationer who faced a violation-of-probation charge for possessing state-sanctioned medicinal marijuana could not be convicted "because a state judge is not responsible for enforcing federal law," Gilg told The Nation.