California’s next attorney general can’t punt on marijuana

Regardless of which candidate wins the race for California attorney general, voters expect that San Francisco Dist. Atty. Kamala Harris or Los Angeles County Dist. Atty. Steve Cooley will respect the outcome of the election gracefully.

But they appear reluctant to extend that respect to Proposition 19, which would legalize the private, adult use of limited amounts of marijuana statewide and allow local governments to regulate commercial production and retail distribution. At their debate last week at UC Davis, neither Harris nor Cooley would state whether they would, as attorney general, enforce and defend Proposition 19.

Democrat Harris was ambiguous regarding what her actions as attorney general might be: “I believe that if it were to pass, it would be incumbent on the attorney general to convene her top lawyers and the experts on constitutional law to do a full analysis of the constitutionality of that measure ... and what action, if any, should follow.”

Republican Cooley was more blunt: “I really am strongly opposed to Proposition 19 for many reasons. I would be inclined to advise that it is unconstitutional and preempted by federal law.”

Given that the attorney general is sworn to uphold all of the laws of the state, not just the ones he or she supports, the candidates’ responses were disconcerting. In both cases it appears that their personal biases against marijuana legalization could compromise their ability to objectively carry out their duties as attorney general.

Further, both candidates’ statements exhibit extreme arrogance. On the one hand, both Harris and Cooley believe that voters should be empowered to choose the state’s top law enforcement officer; but when it comes to amending the state’s marijuana laws, Harris isn’t sure that voters have the final word, and Cooley disregards them outright. Both candidates ought to know better; after all, voters pay for enforcing these criminal policies with their tax dollars.

Of course, such disregard for voter sentiment is nothing new. Former state Atty. Gen. Dan Lungren vehemently opposed Proposition 215, the 1996 initiative that legalized the physician-authorized use of marijuana, and he threatened to use the power of his office to oppose it. Fourteen years after Lungren’s bluster, it is apparent that the law is here to stay irrespective of the verbal threats uttered by the state’s former attorney general. One can expect history to repeat itself if voters endorse Proposition 19 on Nov. 2.

But even if the measure fails, there is a strong likelihood that California’s next attorney general is going to have to face this issue head on. National surveys on marijuana laws show steadily increasing public support for legalization — from less than 20% in the late 1980s to just under half today. Support is even stronger on the West Coast, with nearly 60% of voters in this part of the country responding in a 2009 Zogby International poll that marijuana should be “taxed and legally regulated like alcohol.” In other words, even if voters reject legalization this time around, they are more likely to support a similar measure in a future election.

Which ultimately brings up the question: If a government’s legitimate use of state power is based on the consent of the governed, then at what point does marijuana prohibition — in particular the federal enforcement of prohibition — become illegitimate public policy? Ready or not, California’s next attorney general needs to be able to answer that question objectively and definitively.

Paul Armentano is deputy director of NORML, the National Organization for the Reform of Marijuana Laws, and co-chair of the health professionals steering committee for the Proposition 19 campaign.