Huffpost Los Angeles

Prop 19 Could Spark Court Action From Feds

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SAN FRANCISCO — Federal officials haven't ruled out taking legal action if California voters approve a ballot initiative that would legalize recreational marijuana use in the state, President Barack Obama's drug czar said Wednesday.

In a phone interview with The Associated Press, Director of National Drug Control Policy Gil Kerlikowske said Justice Department officials are "looking at all their options" for responding to the measure, which would conflict with federal laws classifying marijuana as an illegal drug.

Among them, he said, is following the recommendation nine of the nation's former Drug Enforcement Agency chiefs made last month in a letter to Attorney General Eric Holder: having Obama sue to overturn Proposition 19 as an affront to federal authority.

"The letter from the former DEA administrators, a number of whom are not only practicing attorneys but former state attorney generals, made it very clear that they felt that pre-emption was certainly applicable in this case," Kerlikowske said.

Holder told the former DEA heads last week that that the U.S. government plans to "vigorously enforce" federal laws outlawing marijuana possession and distribution even if the activities are allowed under state law. But the attorney general did not respond directly to their suggestion that the administration should go to court if California passes the first-of-its-kind measure aimed at treating marijuana the same as alcohol.

"The attorney general made it clear the federal government will continue to enforce the marijuana laws under the Controlled Substances Act. It's a duty and responsibility of government. It's not something where they can say which laws they want to enforce and which they don't," Kerlikowske said. "That being said, the Department of Justice is looking at and in discussions about whatever options might be available."

Proposition 19, a state constitutional amendment on the Nov. 2 ballot, would allow adults at least 21 years old to possess up to 1 ounce of marijuana and grow 25-square-foot pot gardens for personal pleasure. It would also authorize county and city governments to regulate and tax commercial cultivation and sales.

Kerlikowske was in Southern California on Wednesday for a visit to a Pasadena drug treatment center where he planned to discuss new government data on marijuana abuse in California with Dr. Drew Pinsky, host off the VH1 show "Celebrity Rehab with Dr. Drew." The data show that California already has a much higher percentage of children in treatment for marijuana use than the rest of the country.

In California, 47 percent of those undergoing drug treatment for marijuana in 2008, either voluntarily or after encounters with the criminal justice system, were under 18, compared with 28 percent for the country as a whole. Kerlikowske said liberal attitudes toward marijuana in the state, which has the nation's most liberal medical marijuana law, are a factor.

"People don't want to see someone jump in from Washington and tell them how to vote," he said. "But I think it's also important the people of California get the facts, and the way this proposition is being sold doesn't hold up to scrutiny."

Kerlikowske, the former police chief of Seattle, criticized claims by Proposition 19's supporters that the law would free up time and money law enforcement agencies now spend pursuing marijuana offenses.

"Law enforcement agencies are not spending an inordinate amount of time chasing adults around for small amounts of marijuana," he said. "Here in California, the jail resources, law enforcement resources, court resources are not being overburdened with adults going through the system" for personal pot possession.

Critics of federal marijuana policy said the government would have a hard time persuading a court to strike down Proposition 19 in its entirety.

"If the federal government goes into court to stop Proposition 19 based on pre-emption under the Supremacy Clause, the federal government will lose," said Allen Hopper, former director of the ACLU Drug Law Reform Project. "The federal government cannot force California to leave state marijuana laws on the books, or force California to use state law enforcement personnel and resources to help enforce federal marijuana prohibition. This is a fundamental tenet of our federalist system of government."

They also disputed Kerlikowske's contention that marijuana arrests are unusual in California, pointing to state Department of Justice figures showing that more than 61,000 people were arrested on misdemeanor pot possession charges last year.

Gov. Arnold Schwarzenegger recently signed a law reducing possession of 1 ounce or less of marijuana from a misdemeanor to an infraction punishable by a $100 fine that doesn't require a court appearance.

(This version CORRECTS last paragraph to state that new possession law does not require a court appearance.)

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