The war on marijuana is declared
Marijuana criminalization as it exists today in US federal law began with the 1970 Controlled Substances Act (CSA), which made cannabis illegal on a par with drugs such as cocaine, heroin and LSD. The CSA was passed into law against the backdrop of the Nixon administration’s call for a ‘war on drugs,’ while Nixon himself campaigned for the presidency on a thinly-veiled racist and hawkish pledge to restore ‘law and order’ at a time of heightened racial tensions and mass student protests against the Vietnam war. Faced with continuing social unrest, the CSA provided the federal government with a pretext to target and arrest Black and anti-war protesters on the basis of their drug use instead of their political convictions.
As the 1970s wore on, Black liberation and anti-war protests lost momentum under the weight of state repression and the American military’s eventual withdrawal from Vietnam, but the CSA remained in force with marijuana possession arrests making up the majority of total drug arrests. In the 1980s, under the Reagan administration’s “Just Say No’ anti-drug campaign, law enforcement increasingly targeted users of “hard drugs” like heroin and cocaine, especially powder cocaine and “crack” which were rampant in poorer Black communities. During this period, arrests for cannabis dipped from around 455,600 in 1982 to a low of 287,900 by 1991. Between 1992 and 2009, however, arrests for marijuana more than doubled to a peak of 858,408 in 2009, mostly for possession offenses.
The war on marijuana continues
Over the past ten or so years, the US cannabis reform movement has scored important wins. Starting with Washington State and Colorado in 2012, fifteen states plus the District of Columbia, the Northern Mariana Islands and Guam have legalized adult-use cannabis (as of March 2021), while another 21 states allow its use for medical purposes. Sixteen states plus the US Virgin Islands have decriminalized marijuana (removed criminal penalties for marijuana), and more and more states look set to enact cannabis reforms in the coming years, with public opinion in the US now overwhelmingly in favor of the measure.
While many states are taking the initiative to reform their cannabis laws in the face of federal intransigence, every year hundreds of thousands of people, disproportionately of color, continue to face arrests and convictions for marijuana offenses. These interactions with the criminal justice system often have far-reaching consequences for the individual involved – they could lose custody of their child, be evicted from their home or find themselves unable to land a job.
So, while one in three Americans can now legally smoke cannabis, around 10 percent of the 2.3 million incarcerated people in the US are locked up for marijuana offenses. Meanwhile, marijuana arrests have only seen a modest decline in the last ten years, and have even picked up since 2015 despite the fact eight states subsequently legalized adult-use cannabis or decriminalized possession. Between 2010 and 2018, 6.1 million people were arrested for cannabis offenses – around 18 percent less than between 2001 and 2010. In 2018, there were 663,367 cannabis arrests – almost half of the total drug arrests – 90 percent of which were for simple possession. That year, police arrested more people for marijuana possession than for all violent offenses combined.
State-level legalization and decriminalization leads to fewer cannabis arrests
Although arrest and incarceration rates for cannabis offenses remain high in the US during this era of reform, it’s still true that legalization and decriminalization at the state level leads to fewer marijuana arrests. This may seem intuitive, but the 2010 arrest rate for marijuana possession in decriminalized states was actually higher than in states where cannabis remained a criminal offense, while in legalized states the arrest rate was only one-third lower. After all, even in states that legalized marijuana people can still be arrested for various cannabis offenses, such as possessing over a certain quantity, selling without a license, smoking in a prohibited area, or underage possession.
By 2018, however, legalized states had a drastically lower cannabis possession arrest rate than in states where marijuana remains illegal. But while some states that legalized marijuana, such as Maine, saw a decrease in cannabis arrests after legalization, others, like California, simply continued on a pre-legalization downward trend. Meanwhile, by 2018 decriminalized states had a modestly lower marijuana arrest rate than illegal states, but their arrest rates were more than eight times higher than in legalized states. While on the whole marijuana arrests declined in decriminalized states, some, like Missouri, actually saw more arrests after decriminalization.
Marijuana laws are not enforced equitably
The war on marijuana, and on drugs more broadly, is rooted in racial oppression. This is borne out in research conducted by the American Civil Liberties Union (ACLU) which found that across the US, Black people are 3.6 times more likely to be arrested for cannabis than white people, despite comparable usage rates. The ACLU notes this nationwide level of disparity is more or less the same as it found in its previous report on the issue covering the period 2001-2010. So, while legalization and decriminalization may lead to fewer arrests overall, racial disparities persist. Of particular concern is that racial disparities actually increased in 31 states since the 2010 report.
The severity of racial disparities in the enforcement of cannabis laws varies between states. Those states where the disparities are lowest – Colorado, Alaska, Hawaii, California and Oregon – see Black people arrested for cannabis offenses at 1.5 to 1.8 times the rate of white people. At the other end of the scale, Montana (9.6 times) and Kentucky (9.4 times) have the most severe racial disparities, while in Illinois, West Virginia and Iowa, Black people are more than seven times more likely to be arrested for marijuana than white people. At the county level, the picture can become even more extreme with some jurisdictions reporting Black people are arrested for marijuana at up to 50 times the rate of white people.
State-level marijuana legalization or decriminalization is no cure for racist policing. While racial disparities are, on average, lower in states that reformed their cannabis laws, those states typically already had lower racial disparities than the national average prior to any law change. There’s no guarantee that legalization or decriminalization will reduce racial disparities. In Maine and Vermont, for instance, marijuana arrest racial disparities actually increased between 2010 and 2018, despite each state legalizing cannabis in 2016 and 2018 respectively. States such as Washington and Massachusetts, on the other hand, saw a marked decline in racial disparities following cannabis legalization. It remains to be seen what effect, if any, the reform will have in states that recently legalized which have higher racial disparities than the national average, such as Illinois, Montana and South Dakota.
While the severity of racial disparities in marijuana arrests differs across the country, what holds true is these racial disparities exist in every state to some degree or another. And not only at the state level: the ACLU found racial disparities exist in more than 95 percent of counties with populations above 30,000, of which more than 1 percent are Black. Whether rich or poor, rural or urban, coastal or heartland, prohibitionist or legalized, the US is united when it comes to law enforcement disproportionately targeting Black people with marijuana arrests.
Repairing the harms of marijuana criminalization requires more than legalization
What persisting racial disparities tell us is that marijuana legalization, in itself, is not enough to end racist policing, or racism in the criminal justice system more broadly. Rather, ending cannabis criminalization must be seen as a first step toward advancing racial justice. This means legislation to legalize marijuana must contain provisions that undo some of the harms inflicted upon communities of color under the guise of the war on drugs. This should take the form of social equity provisions that aim to redistribute the wealth of the legal cannabis industry to marginalized communities and ensure people of color can participate in the legal marijuana market as business owners. Marijuana legalization legislation should also include restorative justice measures to ensure past cannabis convictions for now-legal activities do not continue to hold people back from securing a job or finding an apartment. It’s also important, when crafting legislation to legalize cannabis, that lawmakers do not introduce new measures that could allow for racial disparities and inequalities to persist, or even worsen, in new and perhaps unforeseen ways.
Social equity provisions
Social equity with regards to marijuana legalization is the idea that those most harmed by the war on drugs should benefit most from a legal cannabis industry. This could, for instance, take the form of providing people previously convicted of a cannabis offense with preferential access to marijuana business licenses, grants or low-or-no interest loans. The state could also use marijuana sales tax revenues to fund social programs and services that benefit communities who’ve felt the brunt of the war on drugs.
The first states to legalize recreational marijuana – Colorado and Washington – didn’t give a great deal of thought to social equity when developing cannabis industry regulations and deciding how to allocate and reinvest sales tax revenues. What’s more, until recently both states excluded individuals with past cannabis convictions from applying for a marijuana business license. As a result of these oversights and exclusionary policies, Black people are grossly underrepresented as cannabis business owners in Colorado and Washington.
As more states legalized cannabis, however, the importance of including social equity provisions in order to make meaningful progress on racial justice has become more widely acknowledged. Even at the federal level, the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act passed by the US House of Representatives contains various social equity provisions. That said, developing policy and implementing policy are two very different matters. Legalized states, such as Illinois and California, are now discovering the difficulty of realizing their social equity goals despite comprehensive social equity provisions.
Ending marijuana criminalization might prevent people, especially Black people, from getting a criminal record in the future but it’s not much help to those arrested, convicted and incarcerated for an offense that’s now legal. Such a person faces a long list of potential harms that could haunt them throughout their life, long after they’ve served their time or paid their fine. It could preclude them from certain jobs, housing, financial support, child custody as well as threaten their immigration status. Given Black people are arrested and convicted for marijuana offenses at a higher rate than white people, it’s clear that Black people disproportionately carry this criminal record burden.
In order to help undo this harm, marijuana reform advocates for racial justice urge lawmakers to include restorative justice provisions in cannabis legalization legislation. Here, restorative justice refers to measures that allow a person convicted of or arrested for a marijuana offense to attain the rights and civic status they would enjoy had the offense never been illegal. So, in theory, after legalization a person serving time in prison for a cannabis offense would be released and not experience discrimination on the basis of their prior marijuana conviction.
One of the main ways this is achieved is through expungement of prior marijuana convictions. Expunging a marijuana conviction from a criminal record means, in essence, to wipe the record clean as though it never happened. The first states to legalize adult use marijuana were slow to include restorative justice provisions allowing for expungement of cannabis convictions but the measure is now common in legalization legislation. The main issue at play is often how to expunge a marijuana offense. More states now legislate for an automatic process rather than relying on an individual to petition the court for expungement, as this can be costly and time consuming without legal aid, but it’s still far from the norm.
What to avoid when legalizing marijuana
Even with comprehensive restorative justice and social equity provisions in place, there are pitfalls to legalizing marijuana that could perpetuate racial disparities in new ways. Here’s our take on what lawmakers should avoid if they want to promote racial justice through marijuana legalization.
1. Marijuana market monopolies
While more states now include social equity provisions promoting minority ownership of cannabis businesses, there’s a danger such measures would be little more than a gesture if large interstate marijuana companies are able to later monopolize the market. If that happens, the gains from the legal marijuana market aren’t shared equitably and cannabis businesses become no different to any other franchise operating in poor Black communities. To help avoid this, some states have introduced a “residents-only” licensing scheme for cannabis businesses and introduced limits on vertical integration, meaning no one marijuana business can dominate the cannabis supply chain.
2. Harsh penalties for underage users
Marijuana legalization in the US applies to adults 21 and older, so what happens to younger people found with cannabis by law enforcement? This question led to a delay in passing cannabis legalization legislation in New Jersey as the governor pushed for penalties for underage users that some legislators feared would undermine efforts at mitigating racial disparities. While legalization may reduce interactions between the public and the police, this isn’t necessarily so for young people who may find themselves increasingly targeted by law enforcement for cannabis use. To avoid this, penalties for underage users should be kept to an absolute minimum, if introduced at all.
3. Prohibiting home cultivation
Most states that legalized adult use marijuana also legalized home cultivation of the plant for personal use. In recent years, however, more and more state lawmakers looking to legalize cannabis have shown an interest in prohibiting home cultivation for any purpose. In New York, the governor is considering such a move, Florida’s proposed medical marijuana ballot measure would have prohibited homegrows, while Illinois came close to doing so but eventually yielded to public pressure. Aside from being a gross infringement of personal liberty, prohibiting home cultivation of marijuana creates the potential for law enforcement interaction. And poorly-ventilated apartments in cramped quarters are far more likely to be reported for growing cannabis than a detached house in the suburbs.
4. Replacing criminal courts with drug courts
While not yet a comprehensive policy proposal, a task force convened by President Joe Biden during his campaign recommended an increased use of drug courts instead of criminal courts for people committing drug offenses. This would be a grave mistake. Forcibly sending marijuana users to drug courts and then, potentially, mandatory drug treatment centers would still enable law enforcement and other authority figures to take racially-biased punitive action. Replacing criminal courts with drug courts and prisons with drug treatment centers would perpetuate racial disparities in the enforcement of marijuana laws.