The way forward first involves looking back. It requires us to acknowledge and understand the history that led us to where we are today. It allows us to always be aware of the weight of that history—a century of racism and injustice. That oppression was inflicted on communities day by day, year by year, neighborhood by neighborhood with one heavy-handed tactic after another.
That legacy will not be overturned in a handful of years. Harry Anslinger and his kind laid the framework for a “War on Drugs” that persists to this day.
They set in motion the development of laws and policies that would elevate drug possession, cultivation and trafficking to the same level as murder or rape. They oversaw the establishment of specialized enforcement teams that were the precursor to the highly militarized police we have today. They scooped up Black and Brown youths in unprecedented numbers, leading to what we now call mass incarceration. They left generations to deal with the consequences of this mass incarceration, leaving children without parents, parents without hope, and communities without prosperity.
Drug prohibition is a recent phenomenon and a dangerous anomaly.
As we unwind these laws, dismantle these structures, and legalize cannabis (and, eventually, other drugs), we must keep the harms of the War on Drugs in the front of our mind. We must remember the millions whose lives have been derailed and their futures clouded by unfair prohibition laws. They are the casualties of an offensive that has lasted more than 100 years and cost us tens of billions of dollars.
If a racist history isn’t enough to get you to question the merits of drug prohibition, consider this: For most—scratch that, for almost all—of human history, drugs were not illegal. There were no laws dictating their sale or consumption and no penalties attached to their possession. Drug prohibition is a recent phenomenon and a dangerous anomaly.
We are not suggesting everyone embrace drugs and their use but, rather, to recognize their normality in society, their therapeutic benefits, and their often-sacred status in some cultures. We subscribe to the views of Carl Hart, the Columbia University psychology professor and author of Drug Use for Grown-Ups, who has built a huge following by persuasively arguing for the legalization of drugs and against government efforts to legislate against adults who choose to alter their consciousness.
He has argued, as we have, that the War on Drugs is about social control, boosting prison populations and police budgets in the process. Dr. Hart’s views on the effects of cannabis are really not much different from those of Lester Grinspoon some 50 years ago. We need a full understanding of what we are dealing with so that we can move forward to where we need to go.
We have laid out a three-part framework for cannabis equality and fairness: First, there is amnesty, the clearing of those unnecessary and ever so damaging cannabis-related criminal records; second, there is the redistribution of a portion of the financial gains of legalized cannabis back into the communities most harmed by its criminalization; and third, there is inclusion in the legal industry for those most harmed by prohibition.
People, families and communities cannot move forward without a clearing or downgrading of these sentences and records. Canada ignored this imperative, but San Francisco, and later Illinois and New York, are on the right track. The onus must be on the state to clear these records—the process should be comprehensive, automatic and free. Where the use of novel technology—such as Clear My Record—is feasible, great. Whatever we can do to clear these records quickly and efficiently, we should do.
If records are not so easy to access, or novel technological approaches cannot be used for any other reason, old-fashioned hard work should be employed. We have noted the great effort that local, state and federal law enforcement agencies have used to criminalize people for cannabis, and the costs associated with those efforts. We shouldn’t think twice before going to equal or greater lengths to see these records erased—society will be better for it.
At the state level, Illinois provides an excellent example of the work to be done here—state and local law enforcement agencies had cleared several hundred cannabis-related records in the year following the onset of legalization, and a deadline for all counties to have expunged arrest records between 2013 and 2019 was set for January 1, 2021. All eligible records are to be expunged by January 1, 2025.
Programs providing reentry grants could be greatly expanded with the involvement of state governments.
We should also consider being bolder in our amnesty efforts, and seek to clear the records of any offenses linked to an initial cannabis conviction. This would include offenses such as breach of conditions or failure to comply with a court order—offenses that would not have been possible to commit had it not been for the cannabis charge in the first place.
Starting over with a clear record is one thing. Coming back from a period of incarceration is another. Anyone who understands the challenges of “reentry,” the process of assimilating back into society after a period of incarceration, will know of the difficulties faced by ex-prisoners as they try to find housing, secure employment or other sources of money, access health services, reconnect with family and satisfy the conditions of their release, typically with very little or no support. The Last Prisoner Project (LPP), for example, provides reentry grants to ex-prisoners to help ease the transition from incarceration back into the community. Such programs could be greatly expanded with the involvement of state governments.
Redistribution of Revenue From Legal Sales
We need to press our governments to reinvest some of the tax revenue they are getting from legal cannabis sales back into the communities that have been harmed by prohibition.
In doing so, jurisdictions explicitly acknowledge the devastation caused by the War on Drugs and the burden shouldered by the individuals and communities most harmed. They also recognize that the billions of dollars spent on the police, court systems and correctional institutions as part of this war took money from the schools, hospitals and community centers that form the backbones of healthy communities. It is no coincidence the American neighborhoods with the worst-performing schools, poorest health outcomes, and most meager public services also have the highest levels of police activity and greatest numbers of incarcerated residents.
As established in California, Massachusetts, Illinois and now New York, tax reinvestment funds must be set up to do the hard work of rebuilding families, communities and social infrastructure. Although there are questions about the success of early reinvestment programs, Illinois announced the distribution of $31.5 million in grants funded by cannabis tax dollars to communities disproportionately affected by the War on Drugs. Included in the allocation was $3.5 million for street intervention programs aimed at reducing violence.
The New York model could set the standard for federal legalization if it is successful.
New York’s Marihuana Regulation and Taxation Act aspires to ensure members of minority communities who have been negatively and disproportionately impacted by cannabis prohibition benefit from legalization, by creating a social and economic equity program to encourage those individuals to participate in the adult-use market.
The primary social equity components of the new law include expanding eligibility of social equity applicants, creation of a community reinvestment fund supported by cannabis tax revenue, and automatic expungement of past criminal cannabis convictions. The New York model should set the standard for all states that follow, and could set the standard for federal legalization if it is successful.
If carried out as intended, New York’s program will have a genuine impact on individuals, families and communities harmed by prohibition or disregarded by the emerging industry, for years to come.
Inclusion in the Industry
Diversity is good for business. Companies with diverse workforces, leadership teams and corporate boards outperform their peers whose workforce and leadership does not reflect the market they seek or the community they serve. Governments should be pressed to ensure the nascent cannabis industry does not unfairly exclude the casualties of cannabis prohibition.
Laws that exclude those with a cannabis criminal record from working in weed pour salt on a festering wound. Access to the industry should be open, and it should be encouraged. Encouragement can come in the form of dedicated avenues for entry into the industry through points systems and other models, but they must be adequately developed and regulated. The New York model, dedicating the first 100 cannabis retail licenses to individuals or family members of people with cannabis convictions, is an excellent example. This industry cannot remain the domain of elite white entrepreneurs.
The reinvestment detailed above can come into play as governments use money from legal sales to provide grants or loans to social equity applicants, or establish mentoring and incubation programs to aid Black and Brown applicants who lack the natural advantage of white applicants in their communities. The industry itself needs to take note.
Businesses should put their money where their mouths are and fund programs that are having a direct impact.
Reinvestment and engagement with communities that have been left out of the industry is an effort that transcends politics. Diversity and inclusion in hiring practices should be table stakes at this point, but for cannabis businesses, it is an absolute must, with a focus on impacted communities and mentorship opportunities.
Businesses should also put their money where their mouths are and fund programs that are having a direct impact in significant ways, like CannabisAmnesty and LPP. They can look to Ascend Wellness Holdings (AWH), a multistate cannabis operator that pledged to raise $500,000 by July 2022 through a customer donation program at all AWH retail locations.
Previously, AWH raised $250,000 through a similar customer donation program with the company matching customer donations. The chief executive officer has personally pledged to donate to LPP to start the organization’s Freedom Circle, which provides an opportunity for cannabis industry leaders and criminal justice reform-focused philanthropists to make sizable donations that support LPP’s direct service, public education and scholastic initiatives.
Do the Right Thing
Some final thoughts. In order to really achieve cannabis justice, we need to make like Spike Lee and do the right thing. We need to apply pressure on our governments to do the right thing. We need to put pressure on the industry to do the right thing. We need to do the right thing ourselves, by voting in elections for candidates who understand the need for equitable legalization.
We also need to do the right thing by voting with our wallets. Businesses will take notice if customers demand justice and inclusion. In the age of conscious consumerism, people are increasingly aligning themselves with brands and businesses that share their values and ethics. Industry will want a part of this, and it is on the people who purchase cannabis to create the incentive for businesses.
After almost 100 years of cannabis prohibition, and a mere 10 years since the first legal recreational cannabis was consumed in North America, we still have a long way to go to find justice. This is our call to collectively make that happen. Progress has been slow, but momentum is building.
The reality is that all current and future legalization efforts must have equity at their heart or else we will end up right back where we are today.
There were no measures for redress built into legalization in early states such as Colorado and Washington. Things began to change in California and then in Massachusetts, Illinois, and now New York. Momentum is also building at the federal level with the Marijuana Opportunity, Reinvestment and Expungement Act and strong statements in support of cannabis justice from the likes of Cory Booker, Bernie Sanders, Elizabeth Warren, Alexandria Ocasio-Cortez and Chuck Schumer.
We do not believe fairness stops at cannabis. It may have been the most widely used illegal drug under prohibition, but it is certainly not the only one. As calls grow louder for the decriminalization and legalization of psychedelics and other psychoactive substances, we must remember those who have been unjustly persecuted for using those drugs.
Legalization is happening fast, but it has not done enough to reduce the racial disparities in cannabis that have existed for generations. The reality is that all current and future legalization efforts must have equity at their heart or else we will end up right back where we are today, with a system of legalization again rigged against those who suffered under prohibition.
The history of cannabis is undeniably racist, and it’s time to not only confront this intolerable contradiction within our industry, but change it for good. The fight for racial justice in cannabis will be long and complicated, just like its past. We hope our book can provide more awareness and a set of resources to help us along this journey.
This article is an adapted excerpt from Waiting to Inhale: Cannabis Legalization and the Fight for Racial Justice, by Akwasi Owusu-Bempah and Tahira Rehmatullah (MIT Press, April 2023).