Criminalization that never should have been: Cannabis

Across the country, debates are taking place in living rooms, on television screens, and behind closed doors in Congress as to how to address the systemically disproportionate levels of police violence against black Americans. For some, these conversations have been happening for years, yet many other Americans are just now beginning to critically think about these issues for the first time. 

As the House debates ways to reform policing in the United States, it’s critical that we not only analyze the structures under which law enforcement operates, but also the extraordinary powers that they have been granted — powers that often provide them with the ability to interact with citizens whenever and wherever they please. 

One common pretext provided by police for these citizen interactions is that they suspect that someone has either used or is in possession of marijuana. That is why Rep. Lou Correa (D-Calif.) has suggested the need to amend federal anti-marijuana laws during the recent hearing on policing practices. 

Speaking recently with Georgetown Law Professor Paul Butler, Rep. Correa asked, “How do you think that the legalization of cannabis would help for social justice in this nation?”

Professor Butler’s answer was instructive. “We think it would help create equal justice under the law.” 

It’s further instructive to revisit how marijuana became illegal in America in the first place. In fact, our nation’s decades-long prohibition of marijuana was founded upon racism and bigotry. Look no further than the sentiments of its architect, Harry Anslinger, the founding Commissioner of the Federal Bureau of Narcotics, who declared: “[M]ost [marijuana consumers in the US] are Negroes, Hispanics, Filipinos and entertainers. … [M]arijuana causes white women to seek sexual relations with Negroes. … Reefer makes darkies think they’re as good as white men.” 

These racial biases were later exploited by the Nixon administration when it ramped up the drug war in 1970 and declared cannabis to be “public enemy #1.” As former Nixon adviser John Ehrlichman later acknowledged: “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? 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 blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. 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.”

In short, the prohibition and criminalization of cannabis were, and still is, a racially motivated public policy response to personal behavior that is, at worst, a public health matter. But this should have never been a pretext for expanding police powers to search, incarcerate and arrest millions of American citizens.

Annually, over 650,000 Americans are arrested for violating marijuana laws. According to an analysis of these arrests released earlier this year by the ACLU, “In every single state, Black people were more likely to be arrested for marijuana possession, and in some states, Black people were up to six, eight, or almost ten times more likely to be arrested. In 31 states, racial disparities were actually larger in 2018 than they were in 2010.” 

In New York City alone, an estimated 80 percent of those arrested for marijuana violations over the past decades were either Black or Latinx. In fact, marijuana enforcement was so egregious in the Empire State that lawmakers on two separate occasions had to pass legislation to decriminalize the substance and reign in police misconduct. And, even despite these changes, people of color continue to be disproportionately targeted by police — just in fewer numbers than before. 

But New York City is hardly unique. In many underprivileged communities, marijuana prohibition is routinely utilized by law enforcement as the pretext to shield police from punishment for misconduct. Take the case of Philando Castile, who was shot and killed by a police officer during a traffic stop. The officer in the case cited the smell of cannabis as his justification for the use of lethal force, stating, “I thought I was gonna die. And I thought if he’s, if he has the guts and the audacity to smoke marijuana… what care does he give about me.” 

The Washington Post feature, entitled, “Marijuana really can be deadly, but not in the way you probably expect,” highlights numerous other incidences where suspected marijuana use was the key factor in police engagements that resulted in civilian murders. 

Since Congress classified the cannabis plant as an illicit Schedule I substance under the Controlled Substance Act of 1970, well over 20 million Americans have been subject to arrest for violating marijuana laws, and untold millions more who have been harassed under the pretense that they may have been in violation of the law. Entire communities have lost generations of citizens to cyclical poverty and incarceration due to the collateral consequences of having a cannabis-related conviction on their record. 

These consequences include the loss of access to higher education, the inability to qualify for government-subsidized housing, employment discrimination, the loss of child custody, homelessness, and more. In large part due to the modern War on Drugs, the United States’ prison population has skyrocketed by over 500 percent over the last 40 years, with nearly 2.3 million people incarcerated in the United States at the beginning of 2019. 

And the ramifications of this prohibition are not only isolated to US citizens. In fact,  cannabis possession violations are the second most common justification for a drug-related deportation infraction. In recent years, the criminalization of cannabis has become so intertwined with the immigration policy that the U.S. Citizen and Immigration Services released a policy alert stating that immigrants seeking citizenship who use cannabis, even in states where it is legal under state law, may be denied citizenship due to their “lack of good moral character.”

In the days, weeks, and months ahead, I have no doubt that these debates over racially motivated policing and systemic racism will persist in living rooms, city council chambers, and within the halls of Congress. And make no mistake, marijuana policy reform alone will not undo all of the most egregious practices that have led to millions taking the streets crying out for justice and respect and dignity for black lives. But ending prohibition will help. Here’s why. 

It ends an 82-year-old racist stain upon the American criminal code that has enabled law enforcement to limit the freedom and dignity of otherwise law-abiding citizens. It abolishes certain abusive policing practices that law enforcement have never been granted in the first place. It ends a cruel and senseless policy that has been most egregiously used against those who are black, poor, and young — robbing them not only of their present but all too often their future as well. 

For those reasons, Congress must consider the repeal of federal cannabis prohibition in its ongoing legislative effort to bring about substantive policing reform in the United States. 

Justin Strekal is the poolitical director for NORML, where he serves as an advocate to end the federal criminalization of marijuana and to reform our nation’s laws to no longer treat marijuana consumers as second-class citizens.