Redressing America's Racist Cannabis Laws

Voters and Policymakers are Key to Enacting Change

Simeon Spencer

Former Research and Operations Associate, Thurgood Marshall Institute

The groundbreaking Cannabis Administration and Opportunity Act was introduced by Senate Democrats ahead of Congress’ August recess.  This bill removes cannabis from the federal list of controlled substances and calls for expunging all federal non-violent cannabis convictions within one year of its enactment. Senators have repeatedly cited the disproportionate impact of cannabis criminalization on communities of color, propelled by historically racist policies targeting these communities, as one of the primary reasons why these reforms are critical.

At the state level, there is even more momentum to effect change, with many states empowering citizens to play an active role in this process through voting on ballot initiatives to legalize recreational cannabis. Beginning with Colorado and Washington in 2012, this trend continues to gain momentum. This November, voters in Maryland and South Dakota will also decide whether to legalize recreational cannabis. Additionally, there are pending referenda in Nebraska, Oklahoma, Arkansas, North Dakota, and Missouri that may appear on their respective state ballots this fall.

You may wonder why these ballot initiatives are important, especially following the introduction of federal cannabis legislation. For one, there is pessimism about the bill’s chances, as it requires 60 votes in the Senate for passage. Second, even if passed, federal cannabis decriminalization and expungement does not impact individuals who have been convicted under state cannabis laws. To adequately redress the racial inequalities entrenched in policy around cannabis, both state and federal governments must act. And, ahead of looming votes on more state ballot initiatives this November, it’s imperative that voters understand the impact of race and disinformation in the creation of cannabis policy.

Source: Drug Policy Alliance

America's Racist History of Cannabis Criminalization

There is a long history of recreational and medicinal cannabis usage in the United States. In fact, Vanity Fair advertised its benefits as early as 1862. The trend toward cannabis criminalization occurred later in U.S. history — and stemmed from racism and xenophobia. Mexican immigrants to the United States first introduced the practice of smoking cannabis leaf in cigarettes and pipes in the early 1900s — and, soon afterward, many states passed laws prohibiting the plant.

The racial and political climate around cannabis continued to sour with the rise of Harry J. Anslinger, the first commissioner of the now-defunct Federal Bureau of Narcotics. He led a campaign against cannabis, perpetuating racial bias about users and capitalizing on false claims that it could cause people to commit crimes. Anslinger pointedly employed the Spanish term “marijuana” in place of “cannabis” to associate the drug with Mexican immigrants. He also tied cannabis use to jazz music, alleging that it was an evil music form created by people under the plant’s influence. In the end, Anslinger successfully capitalized on these racialized fears. His campaign resulted in the Marihuana Tax Act of 1937, which regulated the importation, cultivation, possession, and distribution of cannabis — and levied fines that were as high as the average American’s annual income.

A 1917 ad placed by drug distributor JL Hopkins & Co, highlighting the mass marketing of cannabis, and the xenophobia that drove in the domestic market. (Source: Wiki Commons)

However, not everyone bought into the demonization of the plant at the time — not even the federal government, which was hesitant to ban it because of cannabis’ therapeutic uses and hemp products’ profitability. Local leaders also questioned the motivations behind regulating the plant. In 1938, New York City Mayor Fiorello La Guardia commissioned the New York Academy of Medicine to conduct a study on cannabis, as he was skeptical of efforts to strictly control its usage. The report, The Marihuana Problem in the City of New York, discredited the sociological, psychological, and medical ills being attributed to cannabis at the time.

Unfortunately, the movement toward criminalization was already too deeply embedded in the American psyche, which resulted in lasting political and social consequences. In 1970, Congress passed the Controlled Substances Act following Leary v. United States (1969), in which the Supreme Court unanimously held that the Marihuana Tax Act of 1937 was unconstitutional because it violated the Fifth Amendment right against self-incrimination. The Controlled Substances Act placed cannabis under Schedule I and thereby outlawed all uses. The War on Drugs had begun.

Figure 1. Racial differences in marijuana arrests by NYPD 2016-2018. Source: NYC 2016-2018 Arrests by Charge, Race, and Ethnicity; American Community Survey 2016.

Disproportionate Effects of the War on Drugs

The War on Drugs, according to John Ehrlichman, Assistant to the President for Domestic Affairs under President Richard Nixon, began as a war against antiwar advocates and Black people. By Ehrlichman’s own admission, the Nixon administration could not criminalize being Black or being against the Vietnam War, so instead it sought to disrupt these communities by getting the public to associate heroin with Black people and marijuana with “hippies” — and then heavily criminalizing them. Those lies ruined lives and fueled the acceleration of mass incarceration in the United States.

Despite using cannabis at a slightly lower rate than their white counterparts, Black people are roughly four times more likely to be arrested for cannabis.

Black and Latinx people have endured significantly disproportionate suffering because of these laws. Despite using cannabis at a slightly lower rate than their white counterparts, Black people are roughly four times more likely to be arrested for cannabis. In 2018, 89% of the more than 2000 offenders who were federally sentenced on cannabis charges were people of color — and 43% of all drug arrests made were cannabis arrests. Today, many Black Americans continue to sit in jails under mandatory life sentences, while the legal pot industry (run primarily by white men) is projected to bring in $45 billion in 2024. Efforts to legalize recreational cannabis are but a first step in addressing these pervasive injustices.

Changing the Status Quo

Indeed, legalizing recreational cannabis alone does nothing to right past racial wrongs and the outcomes of the War on Drugs. In 2021, Virginia passed laws that legalized recreational use of cannabis, provided for expungement guidelines and record sealing, and established a commercial market. Nonetheless, a provision that would have granted resentencing hearings for individuals incarcerated on certain cannabis charges was not included in the final bill. We will see debates about expungement more frequently as additional states move toward recreational legalization.

Oklahoma, for example, is having a similar debate about potential cannabis ballot initiatives. Some groups who would otherwise be sympathetic to recreational cannabis legalization oppose Question 820 because it doesn’t address expungement — which is addressed in another potential ballot initiative, Question 819.

Record expungement is critical for formerly incarcerated individuals, as criminal background checks may inhibit their ability to secure jobs and provide for their families upon reentry to society. Further, lack of expungement prohibits many from participating in the burgeoning, yet racially stratified, cannabis industry. Though, there are some examples of states already committing to righting wrongs. Massachusetts, for example, has established an equity program for Black and Latinx residents who were convicted of drug crimes due to the disparate enforcement and harm endured by these communities.

While the aforementioned remedial policies are important, the United States also needs to fundamentally reimagine the way it deals with drugs. In 2020, Oregon voters passed Measure 110, which decriminalized noncommercial possession offenses for all drugs. As a part of this measure, Oregon diverted $300 million in cannabis tax dollars to fund treatment and recovery programs on a biannual basis. In June 2022, that funding was finally delivered to health providers who specialize in recovery services. As this program is implemented, the rest of the country must pay attention and use whatever lessons may come so that they too can reimagine these systems of criminalization in their own communities.

Looking Forward

Cannabis legislation is a first step in the reimagination of punitive drug policy. As the country waits to see whether Congress will act at the federal level, it’s critical that voters simultaneously make their voices heard on these ballot initiatives in November. Though these votes do not undo the harmful legacy of cannabis policy, they are a strong foundation from which citizens can advocate for more comprehensive solutions, including expungement, treatment, and recovery programs. There is no doubt that the herculean efforts to instill racism and disinformation into drug policy will not easily be overcome. An equally great effort must be made to remedy these harms.

Published August 4, 2022