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.