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Smoking in the War Years: Why Legalizing Marijuana is a Racial Justice Issue

Illustration by Maya Chastain

Once seen as a fringe request made by hippies and disobedient teenagers, the fight to legalize marijuana has greatly evolved since the 1960’s. The Pew Research Center reported in 2019 that over two thirds of the American public now supports legalization; this is a complete reversal from 1969 where only 12% of Americans supported legalizing marijuana. While legalization still has its detractors, Miarijuana is legal in 18 states with varying restrictions on its use and sale. At the federal level there is bipartisan support for legalization with Democrats and Republican lawmakers working together to craft a national solution. Many voters have expressed dismay that the Biden Administration has not fulfilled its promise on marijuana reform. It is clear that criminalizing marijuana has fallen out of favor in the eyes of the American public but for some, legalization is a matter of racial justice.

A 1996 speech in New Hampshire, where First Lady Clinton spoke in support of the 1994 Violent Crime Control and Law Enforcement Act, which was signed into law by President Clinton.

The anti-drug efforts has a long history of racial bias in the United States that touches every part of the criminal legal system, from legislation to enforcement to sentencing. The first anti-drug laws were against opium as a way to criminalized Chinese immigrants. Going into the 20th century, the first anti-marijuana and anti-cocaine laws were directed at Black American and Mexican migrant men. The official War on Drugs was declared by President Nixon in 1971. It was revealed in a 1994 interview with Nixon’s domestic policy advisor John Ehrlichman that Nixon’s anti-drug policies were created specifically to criminalize Black people and the anti-war movement. Proceeding administrations would expand on Nixon’s biased policies by creating mandatory minimums for drug sentencing and implementing the federal three strikes law which requires life in prison after three serious offenses(including “serious” drug offenses). Advocates have noted for decades that, despite falling crime rates, Black people were disproportionately impacted by tough on drug policies that demanded excessive punishment.

Just like the larger War on Drugs, the war on marijuana is highly racialized with stark differences between Black and white Americans. The American Civil Liberties Union (ACLU) released a report that showed that 43.2% of all drug arrest were marijuana offenses in 2018. Additionally, and most shockingly, marijuana arrests accounted for more arrests than all violent crimes combined at the national level. Despite the fact that Black and white people use marijuana at similar rates, Black people are 3.64 times more likely than white people to be arrested for marijuana possession. These racial disparities can still be seen even in states that decriminalized marijuana with Black Americans still arrested for possession at higher rates than white Americans. Criminalizing marijuana is also deeply connected to mass incarceration which unfairly effects Black Americans.

Infographic from the ACLU

Many marijuana advocates, aware of the lasting effects of a criminal conviction, have positioned the battle over legalization as an act of criminal justice reform. In addition to calling for the release of people convicted of marijuna-related offenses, advocates have also been pushing for expunging past marijuana-related offenses. The Marijuana Policy Project (MPP) defines expungement as the legal process where the record of arrest is destroyed or sealed. Organizations like MPP view expungement as vital to the legalization process by ensuring everyone who was incarcerated on marijuana offenses will be able to fully rejoin society. Expungement was incorporated into the legalization process for New Jersey, New Mexico, New York, and Virginia in 2021 and could help hundreds of thousands of formerly incarcerated people.

Unfortunately, could is the operative word.

Residents in some states with expungement clauses cite barriers to getting their records clean. In places like Virginia, where the expungement provision does not take full effect until 2025, many formerly incarcerated people find themselves in limbo. And even if expungement is available to you, it can be costly. Research from Michigian found that only 6.5% of convicted individuals actually pursed expungement due to the application process and fees. High fees and a laborious application process can leave low-income, formerly incarcerated people trapped in the same position they were in prior to legalization.

Infographic from Collateral Consequences Resource Center & Drug Enforcement and Policy Center

While is is easy to view the fight to legalize marijuana as a single policy issue for stoners, this battle must be situated within a larger struggle for racial justice. The legacy of the anti-drug policies and mass incarceration have disproportionately targeted Black Americans for generations. Black formerly incarcerated people need to be centered in any conversation on legalization.

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