Montana Leads the Nation in Black Marijuana Arrest Rates. Will It Legalize?

    Montana’s voters have the chance to legalize marijuana for adult use on November 3. If voters approve reforms in the upcoming election, a new industry could generate tens of millions of dollars in annual tax revenue. More importantly, it will begin to reverse the lasting damage of prohibition, including horrendous racial injustices.

    On the ballot are Constitutional Initiative 118 and Statutory Initiative 190. Initiative 118 sets the legal age for marijuana consumption at 21 years, while Initiative 190 legalizes, taxes and regulates cannabis. Among other provisions, I-190 licenses cannabis dispensaries and testing laboratories. It would collect a 20 percent state tax on sales, which go partly to the state’s general fund and partly to specific services like environmental conservation and addiction treatment.

    An October 28 poll found that I-190 looks likely to pass, with 54 percent in favor and 38 percent opposed.

    Though a mostly rural state of just over a million people, of whom only about 1 percent are Black, Montana holds a notorious record. It arrests more Black residents for marijuana per capita than any other US state. That was the finding of an April 2020 ACLU report analyzing marijuana arrests in all 50 states.

    In Montana, Black people were found to be nearly 10 times likelier than white people to be arrested for marijuana—a disparity that has nearly tripled in just the last 10 years. 

    “Black students recognize that they have a much higher likelihood of getting caught and receiving a higher punishment.”

    “For many Black students, their experience with substance abuse can be different from their white peers,” Jessica Brito of the Black Student Union at Montana State University told Filter. “While their white counterparts may be comfortable smoking in their dorm room, their car, or sneaking around outside, as oftentimes college students do, Black students recognize that they have a much higher likelihood of getting caught and receiving a higher punishment.”

    “Even when Black students are not engaging in these activities themselves, being in proximity to those who are can still lead to lots of trouble.”

    Though the ACLU didn’t analyze arrests of Native Americans, this demographic is also targeted by Montana’s marijuana laws. According to a report from the criminology department of Shenandoah University, Native American residents are disproportionately arrested for marijuana compared to whites, and this trend also worsened between 2014 and 2018.

    Although Native Americans make up just over 8 percent of the population, 14 percent of marijuana arrests are of Native Americans. Native Americans are also overrepresented in the state’s prison system. A 2016 spending report found that one in five total arrests are of Native Americans—largely repeat arrests for technical violations related to terms of parole or probation.

    Marijuana arrests made up 45 percent of overall drug arrests in Montana. The National Organization for Reform of Marijuana Law (NORML) states that in 2016, Montana made nearly 1,500 arrests for marijuana—94 percent for possession alone.

    Kyle Yoder, of Students for Sensible Drug Policy at the University of Montana, has seen firsthand the damage marijuana prohibition inflicts on young people. “A friend of mine got charged with possession at age 16 for an old baggie that had less than 0.1 grams of cannabis leaf leftover in it,” he told Filter. “He got put on probation, but wasn’t given any help for the underlying issue that the cannabis helped him with. He ended up smoking spice as a substitute because he got drug tested.”

    Yoder said that his friend had a seizure, potentially caused by the “spice”—a form of synthetic marijuana. He explained that such potentially riskier alternatives are very popular among people his age now, because marijuana remains illegal. With legalization, young people could consume safer, tested forms of marijuana.

    Current criminal penalties for marijuana in Montana are notably harsh. Possession of up to 60 grams—about two ounces—is punishable by up to six months in jail and a $500 fine for a first offense. A repeat offense can carry up to three years in prison. Anything above that amount is classified as a felony, with penalties of up to five years in prison and a $50,000 fine.

    Other marijuana penalties become severe to the point of absurdity. Intent to distribute any amount is a felony, with up to 20 years in prison. Sale or delivery of marijuana in any amount is a felony. Cultivation of under a pound of marijuana plants is another felony, with up to 10 years in prison. 

    The downside of I-190’s provision is that expungement would not be automatic.

    Initiative 190 seems to at least partially address these criminal injustices. The proposal reads that if approved, courts will be authorized to resentence people currently serving sentences for offenses that would no longer be considered criminal post-legalization. People who have completed their sentences would also be able to get them reclassified or expunged. Expungement provisions are essential to reverse legalized discrimination in areas like housing, employment and even voting rights.

    The downside of I-190’s provision is that expungement would not be automatic. People with criminal records, rather than the state or county governments, would carry the burden of finding out their eligibility and petitioning for relief. In other states that have legalized, this burden has created serious practical barriers to expungement—including people being unaware that they even qualify.

    Jessica Brito stressed that Montana’s marijuana prohibition does not exist in a vacuum. Rather, it is one part of a larger system of police, courts and other authorities that disproportionately arrest and charge Black and Brown people for minor offenses.

    “Marijuana prohibition is certainly a part of the problem, but the issue is a systemic inequality that leads to racial discrimination and injustice,” she said. “Legalizing marijuana may very well help limit some of the minor crimes that Black people are disproportionately arrested for, but it ultimately doesn’t solve the root of the problem leading to such inequity.”

    It would nonetheless be an important immediate step.


    Photo by the Bureau of Land Management, US Department of the Interior via Flickr/Creative Commons 2.0

    • Alexander is Filter’s staff writer. He writes about the movement to end the War on Drugs. He grew up in New Jersey and swears it’s actually alright. He’s also a musician hoping to change the world through the power of ledger lines and legislation. Alexander was previously Filter‘s editorial fellow.

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