Why a City’s Marijuana Delivery Plan Represents Far More Than Customer Convenience

    During the pandemic, services that deliver food and other supplies have become invaluable. Some companies in the industry, such as the Philadelphia-based GoPuff, also do beer and liquor deliveries for adults. In states like Colorado, where cannabis is legal and regulated somewhat like alcohol, home delivery is the next frontier of a new and thriving industry.

    This is exemplified by a new ordinance approved by the council of Aurora, Colorado on December 7, which will allow marijuana deliveries to begin in the city in January. Cannabis delivery is not uncommon in the US, but it is usually a privilege reserved for medical cannabis patients. Aurora appears to be the first Colorado municipality authorizing delivery services for nonmedical consumers. Yet the significance of this measure reaches far beyond customer convenience.

    Alcohol and cannabis do not have the same history, even if they both were illegal on US soil at one time. While the notion of illegal alcohol businesses conjures images of 1920s white gangsters, flapper dresses and speakeasies, people who sell marijuana—and above all people of color—have faced arrest, prosecution, and harsh terms of imprisonment for close to a century longer.

    State legalization campaigns have often been criticized for centering the white experience and not doing enough to address directly the racist mass enforcement of anti-cannabis laws. In many states, including California, the law forbids people with cannabis-related criminal convictions to receive licenses for cannabis-related business ventures.

    That has been true in Colorado, too. In Denver, for example, the legacy of racist enforcement has without doubt contributed to the underrepresentation of Black cannabis business owners and employees, at only 6 percent overall, and the overrepresentation of white cannabis business owners, at 75 percent—figures found by a June 2020 study.

    As a result, organizations like Denver-based Color of Cannabis are now fighting to ensure that new laws regulating cannabis businesses are racially just and socially equitable.

    Color of Cannabis was involved in the successful push for a new state law that created a category of social equity applicants who would receive first dibs on cannabis business licensesa person is eligible if they or an immediate family member were arrested or convicted on a marijuana charge. However, Sarah Woodson, a Black cannabis entrepreneur and Color of Cannabis’s director, has explained to policymakers that this alone does not solve the inaccessibility problem of this new industry for people of color most impacted by cannabis-enforcement injustices.

    Woodson achieved another important win in Aurora, where she helped shape the city’s cannabis delivery ordinance. Crucially, social equity applicants will receive exclusive consideration for the first three years of the city’s new cannabis delivery program.

    This focus on social equity is not without its detractors, however, most of whom cite apparent legal fears. In Aurora, city councilmembers Marsha Berzins and Dave Gruber expressed concern over potential issues stemming from temporarily barring certain applicants from the industry.

    But even in a mainstream political climate that is still far from authorizing widespread reparations to marginalized communities of color for everything from the War on Drugs to slavery, fear over the mere risk of hypothetical legal battles should not stop ethical politicians from taking action for equity where they can. The constitutional contours of equity policies even have a significant level of clarity after decades of Supreme Court decisions on the issue.

    While, for example, in the college admissions context, explicit racial quotas have been deemed unconstitutional under Gratz v. Bollinger (2003), the Supreme Court decided the same year in Grutter v. Bollinger that admissions criteria benefitting marginalized minority groups are constitutionally permittedso long as group status is not solely determinative of admission.

    It is hard to say for certain that the Aurora ordinance would be iron-clad in court. But it is certainly worth fighting for, given what is common knowledge of the racist history and practice of the drug war. 


    Photo by Christina Winter on Unsplash

    • Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School’s Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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