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Katherine McCabe / Gavel Media

Stirring the Pot: What Does the Legalization of Cannabis Mean for Racial Justice?

America took huge strides for the legalization of marijuana this election cycle, with five states passing cannabis-related ballot initiatives. Arizona, New Jersey, and Montana all voted for the legalization of cannabis’ recreational use, while Mississippi voted to legalize it for medical use and South Dakota became the first state to legalize both in the same election.

This recent rethinking of drug laws has been long overdue for states and signals a potential shift towards ending the criminalization of drug use that has exacerbated the marginalization of long-oppressed communities—especially those that are Black and brown.

America’s “War On Drugs” was called for by President Richard Nixon in 1971 to improve community safety (especially for the members of society who have lighter skin and secure status in the class hierarchy) but has failed in its entirety. The president expounded the importance of halting the rise of heroin addiction and marijuana and psychedelic use by students, promoting the idea that a punitive response would bring order to society. Harsher sentencing laws and increased enforcement actions, even for low-level drug offenses, have since disproportionately affected communities of color that have already faced discriminatory practices at all levels of the justice system. 

This wasn’t just a negative consequence of a well-intended campaign but an intentional war on communities of color. John Ehrlichman, Nixon’s former domestic policy chief who was later implicated in the Watergate scandal, even commented that the administration’s largest threats to reelection were anti-war leftists and Black people. 

“We knew we couldn’t make it illegal to be either against the war or Black, but by getting the public to associate the hippies with marijuana and Black with heroin. And then criminalizing both heavily, we could disrupt those communities,” he explained. “We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

Communities of color have faced the brunt of these effects, and reversing rulings on criminalization will not only represent a step forward for racial reparations in America but also work to the increasing issue of mass incarceration. 40% of drug arrests in the United States in 2018 were for marijuana offenses, and most of those were for drug possession (i.e., greater numbers than selling in mass quantities or growing in areas it is illegal to do so). If fewer people of color are arrested for these minor charges that are now not even illegal in many states, fewer will end up in prison. This could alleviate one element of the horrible cycle of disruption in these families and communities that has gone on for far too long. 

Although many still believe that drug use is more prevalent among people of color, we know this to be untrue. Since police tend to look within Black and Latino communities for drug offenses, they find a disproportionate amount of drugs at these stop-and-searches. Because of this, minorities are arrested, prosecuted, convicted, and jailed at higher rates, reinforcing the perception that drug use, trafficking, and/or selling is primarily a minority activity.

It’s disheartening that it’s taken so long for Americans to confront that their attitudes towards drug use and addiction are not only connected to this history but complicit in its biases. But it is certainly an achievement each time a state is able to pass legislation for less harsh laws on marijuana use in a society that has long criminalized its use. 

Unfortunately, this does not mean that those already convicted of marijuana-related crimes will be released or have their sentences reduced in these states that have passed laws allowing the use of recreational marijuana. The United States does not guarantee “retroactive ameliorative relief”, or relaxation of sentences, for those convicted of crimes for which punishments are later eased. These sentences and the person’s criminal history also won’t be expunged from records despite the contradiction posed by current policy. But even if it’s not a federal guarantee, some states have allowed their citizens to appeal for this kind of relief.  Another legal workaround of this issue would be a mass presidential or gubernatorial pardon.

In order to combat the unfairness of the War on Drugs and open the door for exploration of the benefits of drugs like psychedelic mushrooms for depression and other mood disorders, Oregon has become the first state to decriminalize the possession of hard drugs like methamphetamines, heroin, and cocaine. Additionally, reports show the state is also working to decriminalize LSD and oxycodone. The state has coupled these decriminalization initiatives with funding for treatment and harm reduction programs. This attitude towards drugs—decriminalizing and treating addiction with therapy rather than prison—is representative of a future in which America combats deep drug and addiction problems as well as mass incarceration and racial injustices.

Tiffany Devitt, chief of government and consumer affairs for CannaCraft, has compared the cannabis situation to the prohibition of alcohol during the Great Depression.

“You could see a similar trajectory playing out with cannabis, whereby our economic issues that we’re facing as a country [are] waking people up to the fact that the cannabis industry can, in fact, be a benefit to the community as a whole from a jobs standpoint,” she said to CNN.

With the cross-national spread of this new legislation, there is hope that states will learn from one another’s successes in the cannabis industry for economic growth as well as for social reparations and progressions to tout a future of federal legalization of marijuana. These institutional changes could pave the way to a more equitable, racially-just society.