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“[B]y 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.”¹ This admission by John Ehrlichman, a domestic policy chief in the Nixon administration, is a rare acknowledgment of an unvarnished truth. Cutting through the rhetoric of lost communities, preyed-upon children and moral imperatives, Ehrlichman admits that a driving force of the War on Drugs was the ability to oppress people of color. Perhaps nowhere is that more apparent than in the country’s continuing policy toward marijuana. In 1972, the Shafer Commission recommended decriminalization of marijuana for personal use.² The Commission was ignored by the Nixon administration.³ In place of decriminalization was bad policy that equated marijuana to harder drugs, both in effect and in punishment. Sadly, even as the United States comes to terms with the true motives of marijuana policy and individual states undertake campaigns to legalize, racism still influences the policing of marijuana and the damage brought about by the War on Drugs continues to plague communities of color.

From early efforts, based on racist fears, to the full-blown War on Drugs, our country’s deeply biased and deeply flawed crusade largely has been waged against communities of color. And the effects have been felt by the countless generations that have been — and continue to be — oppressed by flawed policy and targeted enforcement. Arrests for marijuana possession account for the largest category of arrests in the United States per annum: over 5 percent of total arrests (for a staggering raw number of nearly 600,000).⁴ Even more damning, however, is the racial breakdown of those arrested. Despite similar rates in usage among blacks and whites, the arrest rate for blacks is considerably higher.⁵ Countrywide, blacks are nearly 4 times as likely as whites to be arrested for marijuana possession.⁶ The rates fluctuate on a regional and local level, but even in self-stylized “progressive” enclaves with liberal leadership like New York City, 86 percent of marijuana arrests between 2014 and 2016 were for blacks and Latinos. This figure is even more striking when placed alongside the demographic breakdown of the city: blacks and Latinos make up only 51 percent of the total population.⁷ 

A closer look at law enforcement in New York City reveals that bias is built into strategy. In 2016, blacks and Latinos made up 92 percent of the marijuana possession arrests by public housing police units. This housing demographic represents only 5 percent of New York City’s total population, but 21 percent of the City’s marijuana possession arrests.⁸ Not only can a large percentage of the overall arrests in New York City for marijuana possession be found in black and Latino neighborhoods, but the majority of arrests in non-black neighborhoods are also arrests of black citizens. Manhattan, for instance, despite being 13 percent black, has a marijuana possession arrest rate that is 45 percent black.⁹ Strikingly, only 14 of those arrests (not 14 percent, 14 individual arrests) were made in the Upper East Side, where the mean household income is above $300,000 and the percentage of white residents is 80.5 percent.¹⁰ 

The movement to decriminalize marijuana is a welcome step in the right direction insofar as it never should have been criminalized. Trends in the states that have legalized recreational use, however, further implicate race as a component in prohibition. States like California, Connecticut, Colorado and Maine have legalized recreational use of marijuana and yet have a black population significantly lower than that of the national average.¹¹ Even in places where possession of small quantities has been legalized, the racial disparity in arrests has not been alleviated. In Massachusetts, for instance, marijuana possession arrests plummeted from nearly 9,000 in 2008 to under 1,500 in 2009 after reform measures were passed.¹² The arrest rate in 2008 for African Americans was 3.41 times that of white citizens, however, and in 2009 — after legalization — the disparity was 5.4 times.¹³ 

Even when politicians publicly denounce the pursuit of marijuana charges, the racial disparity in marijuana possession arrests remains stark. New York City mayoral candidate Bill de Blasio remarked on the “disastrous consequences” of a marijuana arrest, and yet, the alarming disparities noted above persist.¹⁴ Law enforcement leadership also publicly remark on the racial makeup of arrests while leading departments that perpetuate that disparity. When asked about the data pointing to 90 percent of marijuana arrests in Atlanta being of African Americans, Police Chief Erika Shields had this to say:

Does the data support that the African American community has been targeted or is the recipient of far more arrests in this area[?] Absolutely. You’d be a fool to suggest otherwise.¹⁵ 

Even in some locations where marijuana possession has been deemed a low priority, police continue their enforcement in a disparate fashion. In Colorado, where marijuana is legal for those 18 and older, the arrest rate for whites between the ages of 10 and 17 fell 10 percent between 2012 and 2014. The rate for black youth, however, rose by more than 50 percent.¹⁶ Persistent — and in some cases rising — gaps in marijuana possession arrests are puzzling in a state where it has been legalized. Understanding the growing disparity in the mechanism of legalized distribution may provide a clue. In analyzing Colorado arrests after legalization, Stanford professor Keith Humphreys posits that the racial makeup of dispensary ownership being predominantly white leaves communities of color underserved by the legal market, requiring them to remain in the illegal one.¹⁷ 

It is a trend not limited to Colorado. In Maryland, where medical marijuana is legal, none of the 15 businesses approved for growing licenses are owned by African Americans.¹⁸ Even though the law that legalized medical marijuana called for regulators to “actively seek to achieve” diversity in ownership, no factors in the licensing application were weighted in favor of black or Latino applicants.¹⁹ Of the 15 additional preliminary licenses to process marijuana, only one was granted to a group with black ownership.²⁰ In a policy decision that would be comically ironic, if not for the harm it is causing in preventing economic opportunity for people of color, the Maryland Attorney General advised the Maryland Medical Cannabis Commission against considering race as a factor due to a lack of historical racial disparity in marijuana licensing.²¹ In a state that is a third black, Maryland apparently sees nothing wrong with 58 percent of its marijuana possession arrests being of black people while effectively preventing them from profiting by the same means they are punished.²² 

While there is little formal data on dispensary ownership, the racial divide in a $6.6 billion business is beginning to receive greater scrutiny.²³ One study found that 1 percent of the dispensaries in the United States have black ownership.²⁴ Behind the disparity may be another example of cruel irony: many states prohibit ownership for those with a felony drug conviction.²⁵ Still others require high capital investment, a factor further limiting black ownership.²⁶ While the net worth of the median white family remains near $100,000 and white families living near the poverty line have a net worth exceeding $10,000, half of all black households hold less than $1,700 in wealth.²⁷ And in 2016, the rate of black home ownership was lower than it was during the Great Depression.²⁸ Despite these roadblocks, some states and municipalities are taking proactive steps. Illinois and Pennsylvania are weighting applications from black people while Florida and Ohio are earmarking licenses for members of communities of color.²⁹ Los Angeles has recently proposed regulations that would benefit poor applicants, particularly those affected by the War on Drugs.³⁰ The City Council is focusing on four distinct populations:

• lower income individuals convicted of a marijuana offense;
• poor individuals with family members convicted of a marijuana offense;
• residents of poor neighborhoods significantly impacted by marijuana arrests; and
• businesses who commit to aiding poor applicants.³¹ 

Citizens fitting into these categories would receive help with licensing, building a staff and securing property.³² Notably, the proposal would also assist with expungement.

The reality that some states aggressively incarcerate their citizens for possessing the same product that other states now allow their citizens to grow, sell and realize tremendous economic advantage from highlights the absurdity and the harm of marijuana policy. For many in communities of color, however, the damage has already been done. The collateral consequences of having a record infiltrate every aspect of a person’s life, from access to public housing and aid for education to employment prospects and the right to vote. As defense attorneys, we must understand how our nation’s misguided marijuana laws have profound impact on our clients’ lives. What’s more, we must take every opportunity to educate about a system that selectively perpetuates those laws. And finally, we must advocate for legalization reforms that actively encourage participation in the business of growing and selling marijuana by the communities that have historically been most harmed. As it stands now, when it comes to people of color, with respect to punishment and profit in the marijuana business, they get the short end of the stick both coming and going.

Notes

1. Dan Baum, Legalize It All: How to Win the War on Drugs, Harper’s Magazine, Apr. 2016, https://harpers.org/archive/2016/04/legalize-it-all/.
2. David Downs, The Science Behind the DEA’s Long War on Marijuana, Scientific American, Apr. 19, 2016, https://www.scientificamerican.com/article/the-science-behind-the-dea-s-long-war-on-marijuana/.
3. Id.
4. Christopher Ingraham, More People Were Arrested Last Year Over Pot Than for Murder, Rape, Aggravated Assault and Robbery Combined,Wash. Post, Sept. 26, 2017, https://www.washingtonpost.com/news/wonk/wp/2017/09/26/more-people-were-arrested-last-year-over-pot-than-for-murder-rape-aggravated-assault-and-robbery-combined/?utm_term=.8a987c5bc529.
5. ACLU, The War on Marijuana in Black and White: Billions of Dollars Wasted on Racially Biased Arrests, June 2013, https://www.aclu.org/sites/default/files/field_document/1114413-mj-report-rfs-rel1.pdf.
6. Id.
7. Drug Policy Alliance and Marijuana Arrest Research Project, July 2017, http://www.drugpolicy.org/sites/default/files/Marijuana-Arrests-NYC--Unjust-Unconstitutional--July2017_2.pdf.
8. Id.
9. Id.
10. Id. See also Amy Plitt, The Richest Neighborhoods in New York City, June 27, 2017, Curbed, https://ny.curbed.com/2017/6/27/15881706/nyc-richest-neighborhoods-manhattan-brooklyn and https://statisticalatlas.com/neighborhood/New-York/New-York/Upper-East-Side/Race-and-Ethnicity.
11. Keith Humphreys, Persistent Racial Differences Under Softening Marijuana Enforcement, SameFacts, June 4, 2013, https://thesamefacts.com/2013/06/drug-policy/persistant-racial-differences-under-softening-marijuana-enforcement/; and Governing, State Marijuana Laws in 2017 Map, Sept. 14, 2017, http://www.governing.com/gov-data/state-marijuana-laws-map-medical-recreational.html.
12. Dylan Matthews, The Black/White Marijuana Arrest Gap, in Nine Charts, Wash. Post, June 4, 2013, https://www.washingtonpost.com/news/wonk/wp/2013/06/04/the-blackwhite-marijuana-arrest-gap-in-nine-charts/?utm_term=.9987bded395a.
13. Id.
14. Jim Dwyer, Despite de Blasio’s Promise, Marijuana Arrests Persist in New York, N.Y. Times, Oct. 21, 2014, https://www.nytimes.com/2014/10/22/nyregion/despite-de-blasios-promise-marijuana-arrests-persist.html?mcubz=1&_r=0.
15. Michael King, 90 Percent of Atlanta Police Arrests for Marijuana Were African American, 11Alive, Oct. 5, 2017, http://www.11alive.com/news/politics/90-percent-of-atlanta-police-arrests-for-marijuana-were-african-american/480725900.
16. Ben Markus, As Adults Legally Smoke Pot in Colorado, More Minority Kids Arrested for It, NPR, June 29, 2016, http://www.npr.org/2016/06/29/483954157/as-adults-legally-smoke-pot-in-colorado-more-minority-kids-arrested-for-it.
17. Id.
18. Fenit Nirappil, Missing From Maryland’s Legal Marijuana Growers? Black Business Leaders, Wash. Post, Aug. 18, 2016, https://www.cato.org/publications/commentary/us-prisons-thriving-jim-crow-marijuana-arrests.
19. Id.
20. Id.
21. Erica Fox, Maryland Medical Marijuana Regulators Sued for Not Considering Racial Diversity of License Winners, Baltimore Sun, Oct. 31, 2016, http://www.baltimoresun.com/news/maryland/bs-md-marijuana-diversity-lawsuit-20161031-story.html.
22. ACLU, The Maryland War on Marijuana in Black and White, Oct. 2013, http://www.aclu-md.org/marijuana_reform/findings.
23. Tracy Jan & Fenit Nirappil, Battling the Racial Roadblocks to Joining the Legalized Marijuana Trade, Wash. Post, June 2, 2017, https://www.washingtonpost.com/business/economy/battling-the-racial-roadblocks-to-joining-the-legalized-marijuana-trade/2017/06/02/7321de02-416f-11e7-9869-bac8b446820a_story.html?utm_term=.8a7b62833868.
24. Interview with Amanda Chicago Lewis, As the Legal Pot Industry Booms, African Americans Are Left Behind, All Things Considered, Mar. 18, 2016, https://www.npr.org/2016/03/18/471008253/as-the-legal-pot-industry-booms-african-americans-are-left-behind.
25. Supra note 23.
26. Supra note 23.
27. Antonio Moore, Black Wealth in America Hardly Exists, Inequality.org, Oct. 18, 2016, https://inequality.org/research/black-wealth-exists; see also Lisa Dettling et al., Recent Trends in Wealth-Holding by Race and Ethnicity: Evidence From the Survey of Consumer Finances, Federal Reserve, Sept. 27, 2017, https://www.federalreserve.gov/econres/notes/feds-notes/recent-trends-in-wealth-holding-by-race-and-ethnicity-evidence-from-the-survey-of-consumer-finances-20170927.htm.
28. James Carr et al., State of Housing in Black America, National Association of Real Estate Brokers, 2016, http://www.nareb.com/site-files/uploads/2016/08/NAREB-SHIBA-REPORT-2016-final.pdf.
29. Supra note 23.
30. Emily Reyes, L.A. Aims to Help Disadvantaged Communities Cash in on Marijuana Legalization, L.A. Times, Oct. 20, 2017, http://www.latimes.com/local/lanow/la-me-ln-marijuana-equity-20171020-story.html.
31. Id.
32. Id.

About the Author

Rick Jones is the executive director and a founding member of the Neighborhood Defender Service of Harlem, which has gained national and international recognition for its early-entry, holistic, client-centered, community-based, team-defense approach to public defense. He teaches the criminal defense externship and a trial practice course at Columbia Law School, serves on the faculty of the National Criminal Defense College in Macon, Georgia, and is a member of the board of the International Legal Foundation.

Rick Jones
Neighborhood Defender Service of Harlem
New York, NY
212-876-5500
www.ndsny.org
rjones@ndsny.org 

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