ACLU Underlines That Racial Justice Takes More Than Just Marijuana Legalization

Black people are more likely than whites to be arrested for marijuana, even after decriminalization and legalization, confirms a new report from the American Civil Liberties Union. States with legal marijuana have far fewer arrests overall than those with marijuana prohibition, but the proportion of Black arrests is still consistently higher. The researchers support wider marijuana legalization, but are urging governments to simultaneously do much more to create racial justice.

The report—titled “A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform”—was released on the unofficial marijuana holiday of April 20. It analyzed marijuana arrests in all 50 states, including at city and county levels. The researchers looked at the years 2010-2018 using FBI crime data.

First, the disturbing statistics: “Black people are 3.64 times more likely than white people to be arrested for marijuana possession, notwithstanding comparable usage rates,” the authors write. “While national arrest rates for marijuana possession were lower in 2018 than in 2010 for both Black and white individuals, racial disparities in those arrests have not improved, and in some jurisdictions, they have worsened.”

Black people are more likely to be arrested for marijuana in all 50 states. In some states the racial disparities are extremely high—such as Montana where Black people are nearly 10 times more likely than whites to be arrested. Worse, despite an overall 18 percent decrease in marijuana arrests over the last decade, 31 states are now more likely to arrest Black people for marijuana than they were in 2010.

Marijuana decriminalization and legalization have improved but not totally prevented racial disparities—something those in the cannabis movement have known for years. “In every state that has legalized or decriminalized marijuana possession, Black people are still more likely to be arrested for possession than white people,” the authors write.

All states that have legalized marijuana showed decreases in cannabis arrests, while most states that only decriminalized had smaller decreases. “Marijuana possession arrest rates were approximately eight times higher in decriminalized states than in legalized states, although lower than in states where marijuana possession remained illegal,” the authors write. For this reason, they argue that legalization is more desirable than decriminalization.

The authors note that they could not examine how marijuana arrests affect other racial groups, like Latinx, Native and Indigenous, or Arab and Middle Eastern Americans, because the FBI doesn’t collect complete information on these populations. They say that the racial disparities they found within the available data are likely an underestimate.

Clearly, even marijuana legalization on a federal level will not completely solve a bigger problem—that drug arrests, and law enforcement practices generally, target and victimize Black Americans and other racial groups. So how else can we reverse this?

The authors recommend several different approaches for federal, state and local governments as well as law enforcement agencies. These include putting clemency, resentencing and expungement provisions into legalization efforts, and removing the social and professional discrimination that follows people with criminal records.

“No one should be incarcerated on a marijuana offense,” they write. “And having a marijuana conviction on your record can make it difficult to secure and maintain employment, housing, or secure government assistance for the rest of your life […] No person should be denied public benefits or suffer other collateral consequences due to marijuana use, arrest, or conviction.”

Governments should make sure that clemency, resentencing and expungement happens as quickly and cheaply as possible. Courts and prosecutors’ offices should take on the burden of giving this relief, not the people with criminal records. Filter has reported on jurisdictions like Cook County, Illinois, and states across the country that have tried to expunge people’s marijuana convictions, with varying success. The process is still too complex and slow for many people.

Lawmakers and public and private organizations will also have to reform laws and policies to ensure that people with criminal records aren’t discriminated against in other parts of society. Filter reported, for example, on how the newly-elected Democratic Governor of Kentucky, Andy Beshear, issued an executive order to restore voting rights to 140,000 people with felony convictions.

Another approach activists have pushed for is “Ban the box” laws, which prevent schools, employers or other institutions from asking about a person’s criminal history when they apply for college, a job or other services. Ban the box provisions have been passed by many cities, states and the District of Columbia, as well as by Congress for federal employment and contracts. They don’t completely eliminate this form of discrimination, but they do significantly help.

The ACLU researchers also recommend that as more governments legalize marijuana, they take action to create equal opportunities in the new industry for people of color. That includes not banning people with criminal convictions from starting marijuana companies, and also providing funding, education, training and other resources for to help people get started. And the easier governments make it for anyone to legally sell marijuana, the fewer arrests there will be associated with purchases on the illicit market.

Filter has reported on the lack or near absence of Black-owned marijuana businesses in San Francisco, Boston, Cambridge, San Diego and Los Angeles. It’s a problem that is sure to persist as more states legalize. But thanks to the recommendations of organizations like the ACLU and many others, there is no shortage of ideas and solutions for lawmakers to pursue.


Image by Shane T. McCoy/US Marshals via Flickr/Creative Commons 2.0.

Alexander Lekhtman

Alexander is an editorial fellow at Filter.

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