Research by Stanford law students offers roadmap for California on legalizing marijuana

Stanford law students offer an analysis on how California could most effectively implement marijuana legalization for recreational use if voters approve ballot measures on the issue in 2016.

Courtesy of Stanford Law School Stanford Law School students prepare for a presentation on California marijuana policy

Stanford Law School students prepare for a presentation on California marijuana policy options at the RAND Corp. office in Santa Monica, California, in May.

If California voters legalize marijuana for recreational use, the state would be wise to fully consider its options on how best to implement such a law, according to new research by Stanford law students.

One or more marijuana legalization initiatives will probably qualify for the 2016 California ballot. Over the past few years, Colorado, Washington, Alaska, Oregon and Washington, D.C., have all legalized recreational marijuana – and a fuller picture is beginning to emerge.

Analyzing those lessons learned, nine Stanford law students in a practicum held this spring by Stanford law Professor Robert MacCoun offer some suggestions to better inform the public debate surrounding marijuana legalization. Their 109-page report is titled "Legalizing Marijuana in California: A Review of Policy Considerations."

The students came up with big-picture questions about how California might approach marijuana legalization:

  • What agency (or agencies) would be best equipped to regulate such an industry?
  • What are the implications of different ways of taxing marijuana, and how could they be adjusted over time?
  • What kinds of labor regulation issues would be raised in an industry that involves everything from agricultural work to retail service?

"If recreational marijuana becomes legal, state policymakers should follow the adage of 'measure twice, cut once' and ensure that the regulatory system reflects the values and objectives of Californians," the students wrote.

In the 2015 spring quarter, the students enrolled in MacCoun's practicum on marijuana regulation, which was offered through the Stanford Law and Policy Lab. In this type of program, students work with clients under the guidance of faculty experts to develop policy solutions to pressing social and legal issues – such as marijuana legalization in California.

"Our hope with this policy brief is to stoke the discussion of how marijuana should be legalized in California," the students stated in the report. They analyzed legal statutes and empirical data in California and beyond.

The timing is ripe for a statewide dialogue on the issue, they said. Competing ballot initiatives are now being developed and a California blue ribbon commission on marijuana legalization spearheaded by Lt. Gov. Gavin Newsom is expected to issue its own report soon.

MacCoun briefed the commission about a month ago, and Keith Humphreys, a Stanford professor of psychiatry and behavioral sciences, co-chairs that commission. The students also visited the RAND Corp. in June to inform Beau Kilmer, a researcher on drug policy, and other staff members about their findings.

One of the students, Jason Despain, said in an interview that society needed to make changes in the way it addresses marijuana. While he does not personally support legalization, he believes that if California decides to approve recreational marijuana, then it should do so in an efficient, safe manner.

"I certainly hope that our report helps policymakers do so responsibly and in a way that best limits the pernicious impact of an intoxicant, especially among young and vulnerable populations," Despain said.

Federal vs. state legal issues

The Stanford report said the single most pressing issue is the tension between the federal prohibition and state legalization, as constitutional principles, interstate commerce, federal authority and the rights of U.S. attorneys are at play.

MacCoun's students note the importance of deciding which state agency is chosen for marijuana regulation. Possible options include a single, integrated agency – an existing state organization or a newly formed independent commission – or drawing on the relative strengths of multiple agencies.

The tax system for legalized marijuana is likewise critical, the students point out. While taxes will certainly yield revenue to the state, they would also play a highly influential role in regulating business and consumer behavior. For example, the state could tax potent marijuana more heavily.

Overall, the report suggested, it may be preferable to have a tax system that is flexible and adaptable as more is understood about marijuana legalization. The report explores different types of taxes – retail, state sales, excise, local sales, for example – that California could employ as well as the pros and cons of high or low taxes.

Despain, the student, said, "I had assumed that the paper would be a case study of Colorado and Washington, and while we do learn a lot from the experience of those states, I was surprised by how much we could glean from California's approach to tobacco, alcohol, gasoline and other issues."

Labor implications

MacCoun's students wrote that labor is likely to be another aspect worthy of serious attention. The National Labor Relations Board has indicated that marijuana workers – even the agricultural ones – will likely be afforded federal protections under the National Labor Relations Act.

Still, though marijuana workers would likely be able to unionize and collectively bargain, the question of labor standards and employment law is critical, according to the report.

"California may resolve this issue by implementing a licensing program to ensure that the workforce is professionalized and complies with minimum standards," the students wrote.

The current regulatory framework that governs workers' rights in California is somewhat "fragmented and fragile," as the students described it. "Recreational marijuana may upset the delicate balance that has been struck between state and federal legislation."

Efficiency, health, costs

One concern is the black market, or how legalization could limit the size of the marijuana black market and discourage consumers from continuing to buy marijuana from drug dealers.

The practicum, Analyzing Alternative Laws and Policies for Psychoactive Drugs Seminar, included Despain and other law students: Andrew Baker, Elissa Baur, Cari Jeffries, Hugh Kirkpatrick, Ann Linder, Michael Morillo, Paulina Slagter and Mackenzie Tudor.

"I had high expectations and they far exceeded them," MacCoun said. "I for one learned a great deal from their research and analysis."

One goal was to be evidence-driven and objective. MacCoun noted, "We agreed from the start that the analysis would not address whether California should legalize, but rather how it should legalize if citizens vote to do so."

He added, "The students do not make any recommendations in the report. They examine a whole range of choices. This is not Stanford Law School taking a position."

MacCoun, a social psychologist and public policy analyst, said California's decision to legalize or not will have a broad impact. As the most populous state, it regularly serves as an example for the entire country.

At least four advocacy groups are drafting ballot measures for the November 2016 California ballot.

MacCoun is worried that they may not take into consideration some important issues in shaping those ballot measures.

"It is in their political best interest to think about these things now, since there are still 46 states that haven't legalized, and the federal government under a new president might be much less tolerant of state experiments in this area," he said.

MacCoun was a co-author on another recent journal article on the perils of marijuana edible regulations in Colorado. He is interviewed in this video by Stanford Law School about the challenges of marijuana legalization.

Robert MacCoun, Stanford Law School: (650) 721-3011, [email protected]

Clifton B. Parker, Stanford News Service: (650) 725-0224, [email protected]