Stoners Against Legalization’s “Over the Limit” Talking Point


The Stoners Against Legalization are swarming through the cannabis community’s social media feeds, helping prohibition profiteers defeat California’s marijuana legalization initiative, Prop 64. Everything from stilted little picture memes to full-length blog novels is being thrown at the Twitter feeds and Facebook walls to see what will stick.

Stoners Against Legalization >1oz meme
Fewer than 6 plants indoors is legal and protected and less than 28.5 grams is legal and no probable cause… so there will be MORE arrests?!?

For instance, one breathtakingly illogical meme appeared on my feed, pointing out that after passage of Prop 64, those caught growing more than 6 cannabis plants or possessing in public more than 28.5 grams of marijuana would be committing a crime. This, in turn would lead to the jails being “full again”, implying that they aren’t full now, so Prop 64 would be increasing the imprisonment of cannabis consumers.

Got that? If we legalize marijuana in California, jails will be fuller…?

Part of how this Stoners Against Legalization talking point tries to confuse people is by ignoring what the laws and penalties are right now, before Prop 64 passes. Under California law now, cultivating any marijuana plants is a felony worth 16 months to 3 years in prison.

California Marijuana Laws NOW
Before you go spouting off about how Prop 64 “creates a new crime”, you better check whether that’s ALREADY a crime first. (Image:

So logically, people who now might be caught with one-to-six cannabis plants can be filling jails. After Prop 64 passes, those people will not be committing crimes and not eligible to fill a jail.

Now, maybe, if I’m playing Devil’s advocate, I could predict that the elimination of 1-6 plant growers from jail consideration might be substituted by arrests of more of the people growing 7+ plants. Unfortunately for the Devil, the other part made legal – one ounce possession – confounds any hypothesis about increased grow arrests.

Stoners Against Legalization like to minimize the need for Prop 64 by pointing out that possession of an ounce in California is only subject to a $100 infraction and few people really go to prison for possession. (I’ll tackle their adoption of one of Kevin Sabet’s favorite talking points in another post.)

But that infraction still means the marijuana they caught you with is contraband. That means the sight of some of it on your clothes, a piece of paraphernalia you left in view, and the smell of it detected by human officer or K-9 officer is a probable cause to believe crime is occurring, to detain and investigate, and to call for search warrants.

Yes on 64
Click to visit the official Prop 64 campaign website

In the states that have legalized marijuana in the same general manner that Prop 64 does, it wasn’t just the arrests for less than an ounce that declined sharply. All marijuana charges, including possessing too much or growing too much, declined. In Colorado, 4-out-of-5 marijuana charges that would’ve happened before legalization disappeared. In Washington, almost 2-out-of-3 marijuana charges disappeared after legalization (presumably fewer than Colorado because home grow is still illegal in Washington).

Prop 64 vs. Now
EVERY marijuana penalty but one (violating non-smoking area) is the same or lesser under Prop 64. (Credit: Chris Conrad)

That’s because without the contraband status of marijuana, evidence of its possession doesn’t guarantee a crime is taking place. In Colorado, Washington, Oregon, and Alaska, police have had to retire their K-9 officers who sniff out marijuana, because a few legal grams causes the same alert as a few illegal pounds – dogs can’t smell weight. Even if the K-9 can sniff out other drugs, they can’t be trained to unsniff for marijuana. They’re now useless, because any savvy coke, heroin, or meth dealer can just leave a legal gram of pot with his kilos of stash, and the dog’s alert would be challenged by the defense, since there’s no way to tell whether it was the legal pot or the illegal drugs the dog alerted to.

Combine the elimination of pot-sniffing dogs with the fact that other common first-steps-to-getting-busted-for-pot are also hamstrung by legalizing an ounce of possession and there is no way Prop 64 is going to lead to more people in jail for marijuana.

Furthermore, the meme provides a false implication that the crime of having over six plants or one ounce is somehow established by Prop 64. In fact, the misdemeanor crime and penalty for possessing over an ounce remains the same and the felony crime and penalty for growing over six plants is reduced to a 6-month, $500 misdemeanor and can’t attain the current law’s felony crime and penalty until a third offense.

I’ll tackle some more of those Stoners Against Legalization “new crime” talking points in my next post.

Stoners Against Legalization "Over the Limit" Meme Response
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Russ Belville
About Russ Belville 199 Articles
Russ Belville - or "Radical" Russ, as he is known on-air - hosts The Marijuana Agenda, a live news and talk radio program for the cannabis community, weekdays at 3pm Pacific on  The show is based in Portland, Oregon, but "Radical" Russ has traveled over 300,000 air miles in the past five years, bringing his show to report live from hundreds of cannabis conferences, marijuana expos, hemp festivals, and legalization events in over 70 North American cities.