Saturday, August 21, 2010

How Many Arrests Will Prop 19 Stop?


I have been reading over the internet several people citing the number of arrests in California and using these numbers as a way to show how helpful Prop 19 will be. It is certainly true that Prop 19 will stop arrests in California. The extent that it will do so, however, is seriously misconstrued. 


Tom Ammiano and NORML have citied 61,000 arrests for "misdemeanor marijuana possession alone" and 17,000 arrests for felony marijuana offenses in California in 2008. And the Yes on 19 people claim Prop 19 will reduce prison costs and overcrowding. I'd like to take a closer look at the numbers, so that the voters can get a more realistic view of the arrests that will stop and the criminal justice costs that will decrease.


**It should be noted that these numbers are for arrests, and not convictions. Thus, the number of people actually in jail or prison will be lower than these numbers.



First, I'll address the 61,000 misdemeanor marijuana offense arrests that Prop 19 will supposedly put an end to. According to the California DOJ, there were 61,388 arrests for ALL marijuana related misdemeanors - not just possession. So how many of these arrests will be stopped under Prop 19?

1. The DOJ outlines the number of these arrests that are of juveniles (under 18). In 2008, there were 14,313 arrests of juveniles for misdemeanor marijuana offenses. These offenders will continue to be arrested and prosecuted under Prop 19, since they are not a protected group. Thus, 23.3% of misdemeanor arrests will continue, lowering Tom and NORML's number to 47,075.

2. The DOJ outlines the number of these arrests that are of offenders aged 18-20, another group that is not protected under Prop 19's laws. In 2008 there were 14,381 arrests of 18-20 year olds for misdemeanor marijuana offenses, which is an additional 23.4% of arrests that will continue under Prop 19. Thus, Tom and NORML's number is lowered to 32,694.

3. The DOJ does not outline the number of arrests by the specific offense, so there is no way to be 100% accurate on the number of arrests that will end under Prop 19. What we do know is that there are 6 offenses that are misdemeanor marijuana offenses. They are:
  • Possession of one ounce or less of marijuana (Health & Safety Code Section 11357(b) & Vehicle Code Section 23222) *See #4
  • Possession of concentrate cannabis (Health & Safety Code Section 11357(a))
  • Possession of more than one ounce of marijuana (Health & Safety Code Section 11357(c))
  • Possession on school grounds (Health & Safety Code Section 11357(d&e))
  • Furnishing marijuana, one ounce or less, to anyone other than a minor (Health & Safety Code Section 11360(b))
  • Driving Under the Influence of Marijuana (Vehicle Code Section 23152(a)) **Under the DOJ's numbers, it is not clear, but is unlikely, that DUI(a) is included in the number of marijuana arrests cited as 61,388. 
Of the 5 offenses included in the 61,388 number of arrests in California, under Prop 19, only 2 of these offenses will be legal (H&S 11357(a&b)), 1 is iffy whether or not it will remain a crime (H&S 11360(b)), and 2 will remain crimes (H&S 11357(c,d,&e). But because the DOJ does not release the numbers by the specific offense, it is impossible to determine how many of these arrests are for the 2 crimes that will remain crimes under Prop 19. See #4 for my explanation regarding possession of one ounce or less. 

4. Lastly, the reader of these statistics needs to know that the California DOJ does not define "arrest" in the same way most citizens do. And anyone quoting these particular statistics either doesn't understand that, or doesn't want you to understand that. You and I probably define arrest as being put in handcuffs and being taken to jail. But technically, according to the DOJ, you never have to be put in handcuffs and taken to jail in order to have been "arrested." According to the DOJ, if you have been given a ticket and released on the spot, you have been "arrested." So you know that misdemeanor traffic violation you got a while back? According to the DOJ, you were "arrested" even though you never stepped out of your car and never saw the inside of a jail cell. So, the 61,388 "arrests" includes people that received tickets for simple possession of less than one ounce, but were never actually arrested (by the normal definition). So, technically, Prop 19 will stop these "arrests." But under the layman's definition of "arrest," these people were never arrested anyway. Unfortunately the DOJ does not release the number of arrests specific to the offenses, and only groups them into offense categories. So I cannot tell you what percentage of the 61,388 arrests are "arrests" for simple marijuana possession of under an ounce. But what I can tell you is that, as the crime the is most frequently seen in the criminal justice system, discounting these "arrests" from the  61,388 number to show the number of actual arrests, as defined by the average citizen, would significantly decrease Tom/NORML's estimation of the number of arrests that would end under Prop 19.

So we know now this 61,388 number of arrests ending under Prop 19 as quoted by Tom and NORML is exaggerated and should be, at an absolute maximum 32,694. But even that number is exaggerated by an unknown number of arrests for 2 crimes that will continue to be crimes under Prop 19. And this number is even further exaggerated by an unknown number of "arrests" that were actually a simple citation being issued for H&S 11357(b). Needless to say, the number of actual misdemeanor arrests that would end if Prop 19 passes is significantly lower than Tom and NORML's estimation of 61,388.


Next, let's address the 17,00 felony marijuana arrests that will end under Prop 19. According to the DOJ, there were 17,126 arrests for felony marijuana offense in California in 2008. Again, How many of these arrests will stop under Prop 19?

1. According to the DOJ, 2,044 of these arrests are of juveniles (under 18), making up 11.9% of felony marijuana arrests. These offenders will continue to be arrested and prosecuted under Prop 19, since they are not a protected group. Thus lowering Tom and NORML's number to 15,082.

2. According to the DOJ, 3,339 of these arrests are of offenders aged 18-20, a group not protected by Prop 19's laws. This accounts for an additional 19.5% of felony marijuana arrests and lowers Tom and NORML's number to 11,743.

3. These felony arrests include a multitude of crimes that will absolutely continue under Prop 19, including: 
  • Sales to a minor (Health & Safety Code Section 11361(a)) **(In fact, Prop 19 might increase arrests by changing the definition of "minor" in Health and Safety Code Section 11361(a) from under 18 to under 21. But this will be discussed in a future article.)
  • Furnishing to a minor under 14 (Health & Safety Code Section 11361(b))
  • Manufacturing by chemical extraction (Health & Safety Code Section 11379.6)
4. These felony arrests include a multitude of crimes that, under Prop 19, will continue in municipalities that fail to enact legislation allowing commercial cultivation, sales, and distribution: 
  • Sales of any amount of cannabis or Furnishing more than one ounce (Health & Safety Code Section 11360(a))
  • Possession with the intent to sell (Health & Safety Code Section 11359)
  • Cultivation (will only be a crime if more than 25 square feet) (Health & Safety Code Section 11358) 
So we know now this 17,126 number of arrests ending under Prop 19 as quoted by Tom and NORML is exaggerated and should be, at an absolute maximum 11,743. But even that number is exaggerated by an unknown number of arrests for several crimes that will continue to be crimes under Prop 19 and by some crimes that will remain crimes in certain areas of the state. This number is also not taking into consideration the number of arrests that will actually increase based on the definition of "minor" under H&S 11361(a) changing under Prop 19. 


Now, I have heard an argument from Eric Brenner (of The California Marijuana Report) and on CA NORML's website that cops are currently getting around the "no-arrest" rule for simple possession of one ounce or less by arresting someone with a more serious crime (ie: possession for sales). Let me be clear of one thing: an officer MUST have probable cause to arrest for you for such a crime in order to arrest you. Even if you think the probable cause the officer has is total bull, he still has it. A perfect example is the "multiple baggies = intent to sell" argument. Sometimes people simply have multiple strains and want to keep them separated. You and I know that. Even the cops know that. But case law says those multiple baggies are probable cause for an officer to arrest you for possession with intent to sell. 

Now, let me tell you why this is a pointless argument to make. Some people seem to think that because Prop 19 legalizes possession of one ounce or less, these kinds of arrests will stop. But not so fast. Prop 19 does not legalize possession with the intent to sell unless you have a license to sell. Thus, under Prop 19, these arrests will continue. If an officer had probable cause to believe you had the intent to sell (because you had three 1-gram baggies), he will continue to have such probable cause under Prop 19.

So how does Prop 19 affect this situation? Under the current regime, if you get caught with three 1-gram baggies a cop will either give you a ticket for possession of an ounce or less, or he will arrest you for possession with intent to sell. Under Prop 19, the ticket is no longer an option, but the arrest still is. 

Now, for those of you that have had police interactions, tell me how likely it is that a cop that has spent 15-30 minutes talking to you and searching you is simply going to let you walk away? If he can find anything to arrest you for, even if he is stretching it, it is not very likely.

11 comments:

  1. I have to disagree with a lot of your terminology. You talked about how underage possession will remain a misdemeanor. Probably not. In most states, underage possession of alcohol is a violation. Not even a misdemeanor. So if marijuana was legalized, possessing it underage would probably be a violation.

    Also, you referred to being charged with a misdemeanor when being issued a traffic ticket. Also incorrect. The majority of traffic offenses are also violations.

    You're an attorney. Either you know all this and you're intentionally leaving it out, or you're just terrible at your job.

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  2. Thanks for your response. Let me clarify a few things.

    "In most states, underage possession of alcohol is a violation."

    I believe you mean an infraction. That might be true in most states, I don't know. But in California a minor in possession of alcohol is a misdemeanor.

    "So if marijuana was legalized, possessing it underage would probably be a violation."

    Under the plain language of Prop 19, possession by a minor remains a misdemeanor. Are you saying that at some future point the crime will be reduced to an infraction? I suppose that is possible. But since possession of alcohol by a minor is still a misdemeanor, it probably won't happen. And either way, I was strictly talking about the results under Prop 19. Not some future date when some future legislation may or may not be passed.

    "Also, you referred to being charged with a misdemeanor when being issued a traffic ticket. Also incorrect. The majority of traffic offenses are also violations."

    This is true that "the majority" of traffic violations are infractions. But even by your own statement ("the majority"), not all of them are infractions. The remainder are misdemeanors and even some felonies. Which is why I specified, in my article, that I was talking about misdemeanors. If I just meant any traffic violation, I would have simply said "traffic ticket." I did not want to mislead the readers, so I specifically put "misdemeanor traffic violation." Some examples of misdemeanor traffic violations are: driving without a license, driving without insurance, DUI, reckless driving, exhibition of speed, racing, marijuana in the vehicle, open container, and leaving the scene of an accident.

    I did not intentionally leave anything out. My apologies if it was not sufficiently clear that I meant only misdemeanor traffic violations and not all traffic violations. I hope this clears it up for you.

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  3. Someone arguing with an Attorney who has given an exhaustive explanation of her position, by using the terminology "probably" has given me quite a laugh. Speaking of leaving things out, "Anonymous" speaks volumes.

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  4. I am glad that someone has clarified the arrests for possessions. While I agree with a lot of what you are saying Ms. Soares I feel that your arguments do have some weakness. One of which is your over-use of the word "exaggerated" ;) Some others are rather weak in premise, for example, your multiple baggies theory. under prop 19 it is legal for under one ounce and that you are allowed to share is specifically mentioned, if things go as they should with legal distribution it is probable that three grams would be sold in separate packages. so I believe that even if arrested after prop 19, it would be a hard sell and the courts would reject the reasoning. Not to mention that it would reduce quite a few of these intents to sell because street dealers would become obsolete. Also for the probable cause, correct me if I am wrong, but isn't the fact that marijuana would now be legal that the mere whiff of it on someone or coming from the car would not be probable cause to search unless they had other cause such as visiblity of a large quantity or some other smoking gun?

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  5. Wildweed: Thanks for the comment. Let me expand on a few things.

    "Some others are rather weak in premise, for example, your multiple baggies theory."

    Unfortunately, this is not a theory. This is a problem I saw often as a public defender and continue to see frequently as a private defense attorney. While the charges may not always stick in a court room, there is ample case law that holds multiple baggies are probable cause for arrest. And while it might seem reasonable to me and you that marijuana would be sold in multiple baggies, the medical marijuana patients that have been arrested for having three strains in three bags will tell you that the cops won't think it is reasonable.

    "it would be a hard sell and the courts would reject the reasoning."

    Again, this may be true for a conviction. But cops have quite a bit of leeway when it comes to the standard for probable cause. The standard for probable cause is fairly low. The standard for a conviction is different, and much higher (beyond a reasonable doubt). So, Prop 19 might help the battle for your conviction, but a cop still can and will arrest you for intent to sell.

    "Not to mention that it would reduce quite a few of these intents to sell because street dealers would become obsolete."

    Not in the short term. Until there is a legitimate price drop, street dealers will stay in business. And even then, some of them will stay in business to service the under 21 crowd. Also, in cities where there are no retail facilities (ie: the 140 cities that currently ban medical marijuana retail sites) there will still be a market for street dealers.

    "but isn't the fact that marijuana would now be legal that the mere whiff of it on someone or coming from the car would not be probable cause to search unless they had other cause such as visiblity of a large quantity or some other smoking gun?"

    Probable cause and Prop 19 are an interesting subject. The mere smell of it is not necessarily probable cause to search/arrest now, if you are in your house. The smell of it if you are walking down the street will not be probable cause to search/arrest unless the officer can point to other signs you are committing other crimes (PC 647, for example). The smell coming from a car, however, will still be probable cause (because DUI drugs will still be a crime under Prop 19). If you car smells like smoked marijuana, the cop has probable cause to take you out of the car and determine whether or not you are under the influence. The mere fact that you car smells like smoked marijuana is strong enough for an arrest. It might be flimsy if there is nothing else the cop can point to, but it will do. If, however, there is anything else the cop can point to (not necessarily a smoking gun, but, for example, you were driving too slow or weaving within your own lane, or you have red eyes) then he will absolutely have probable cause to arrest you for DUI drugs. If your car smells like fresh (not smoked) marijuana, the cop may not have probable cause to pull you out of the car. But he will. And I will tell you how. His police report will simply say that he smelled "marijuana' and not "fresh marijuana." He will lie and say it smelled like smoked marijuana on the stand. You will swear up and down you have never smoked in your car. The jury and the judge will believe the cop. It is a horrible reality to face, but it is the reality of the justice system. And it does/will happen. Or, the cop will see other evidence of a crime (ie: indications you are DUI, multiple baggies, a scale, large quantity, etc.) and will have probable cause at that point to arrest for something else.

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  6. I'm glad Ms. Soares is taking the time to respond to comments; I was going to respond to some of Wildweed's thoughts but now I do not need to do so.
    I was also happily surprised to see Mike Boutin's name posted. I don't know you, Mr. Boutin, but some of your many admirers came by the No on Prop. 19 booth at L.A. Hempcon and mentioned you. Good for you for trying to educate people about Prop. 19, Richard Lee's Trojan Horse.
    I'm Letitia Pepper, and I don't want to post as anonymous, but I haven't quite got the hang of how do this.

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  7. thank you for replying. i realize that there will still be law enforcement that will resist the new laws and that the road to reducing the numbers of small time dealers will be a long rocky haul. However i still feel that if 19 passes the game will change significantly enough to make a difference, and there will be more legal weight and defense in our favor, at least on the state and local levels, pretty sure the feds and law enforcement are going to tie it up as long as they can in court..

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  8. And now that we have established that no matter what law is going to be voted in we can count pretty much on some in law enforcement not being very cooperative or honoring the intent of any legalization law, there is another question, if you don't mind me asking?

    I have not seen where you had expressed an opinion on the claims that prop 19 leaves prop 215 or SB420 vulnerable to restriction on the possesion quantity or space allowed for growing their medication? I personally am not sure how many people would actually need more than one ounce at one time, or could afford it if they did - but I would hate for someone who needed it not be able to get it or grow it, and it seems to be a concern of some of the people who have expressed their concern about the complexity of this law.

    I would also be interesting in hearing what kind of language you would want included in any future bills or amendments to ease us into a reasonable solution to ending prohibition?

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  9. Just for some insights. In NYC you are ARRESTED, that means handcuffed, mug shots and jail. Yes, even for a seed. A friend was recently
    arrested because the police "smelled" marijuana. He was in for 3 days. Just for background. I was in jail for 1 day for an empty pipe. 100% empty. NYC is pretty much a police state for MJ. I know no one that was ever given a "ticket", not a soul. Everyone goes to jail, even for just a day. But you do go to jail in NYC.

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  10. I guess your whole argument just went out the window after swarzy signed 1449 into law. Maybe that's why you havent posted since august. Lets see what happens with 19.

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  11. @ Anonymous:

    "I guess your whole argument just went out the window"

    Actually, not at all. It makes my argument stronger. Because now that 61,000 number the Yes people are using is even more inaccurate. See the first point #4.

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