Legalizing marijuana, while vital, is not enough to remedy the harms of decades of War on Drugs policies. Our new report, A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform, shows that while more states are legalizing or decriminalizing marijuana, high arrest rates and severe racial disparities persist nationally. It’s clear that while legalization is part of the answer, it isn’t enough.
For truly equitable reform, the ACLU recommends that any legalization efforts center racial justice and include the following components:
- Fair fines and fees
- Resentencing, expungement, and clemency
- Elimination of collateral consequences
- Inclusive legal markets
- Exclusion of arrests in performance measures
- Police reform
All states should legalize marijuana and should prioritize racial justice and equity in reform efforts in order to address the harms that marijuana laws have inflicted upon Black and Brown people for decades. States should also include youth in reform efforts: Youth marijuana use and possession should be legalized, decriminalized, or depenalized; and youth offenses should result in drug education or community service instead of criminal intervention. Any education about the harms of drugs should be rooted in science and facts and not in fear-mongering.
Legalizing marijuana is an important step toward ending the War on Drugs, but it must include the other recommended reforms to avoid reinforcing the impact of prohibition that communities of color have faced for decades.
Fair fines and fees
States that legalize should forgive outstanding debts for marijuana fines and fees, which have harmed low-income communities and communities of color for decades. While fines are financial punishment for an offense imposed at sentencing, fees are intended for revenue collection. States should thus eliminate any fees in marijuana enforcement, and ensure that any fines are equitable and proportionate according to the individual’s income and severity of the offense.
Penalties for nonpayment of fines should be limited, and under no circumstances should they result in incarceration, suspension, or revocation of driver’s licenses, disenfranchisement, extension or revocation of probation, parole or any other form of supervision, or additional monetary penalties. Any person with outstanding fines should also be able to proactively request a fine reduction or waiver based on financial circumstances prior to default.
For model language on fines and fees reform, see Hawaii’s HB 2674 and California’s SB 144.
Resentencing, expungement, and clemency
After legalization, nobody should remain incarcerated for prior marijuana offenses, and nobody should continue to face the harmful collateral consequences of a marijuana conviction on their record. To address these systemic harms, legalization must include processes for clemency, resentencing, and expungement that are speedy, automatic, and free of cost. The categories of offenses eligible for automatic clemency consideration, resentencing, or expungement should include as many people and types of offense as possible. For all those who are not automatically expunged, the process should be as quick and cheap as possible.
Elimination of collateral consequences
The collateral consequences of a marijuana conviction can significantly derail a person’s life, restricting their ability to secure employment, housing, and many public services. Due to racial disparities in marijuana enforcement, these consequences disproportionately impact communities of color. States should ensure that nobody continues to face the collateral consequences of a marijuana conviction, including the following:
- Denial of public benefits based on marijuana use, arrests, or convictions
- Drug tests for benefit eligibility
- Separation of families in the child welfare system
- Loss of driver’s licenses
- Loss of federal financial aid
- Bans on participation in the marijuana industry for those with drug arrests
- Felony disenfranchisement
People with a marijuana conviction on their record should be able to fully re-integrate into society by accessing the same rights and services as anybody else.
Inclusive legal markets
States should ensure that communities of color, small business owners, and people with prior drug convictions can access and benefit from the new legal marijuana marketplace after legalization. The cost of obtaining a license must be reasonable and accessible. States should also provide licensing for marijuana consumption in public spaces so that people who live in public housing or rental units can access legalized spaces instead of continuing to face discriminatory marijuana enforcement after legalization.
Further, states should use the tax revenue raised by the legal marijuana market for programs working to end collateral harms and for supporting small businesses owned or run by communities directly impacted by the War on Drugs.
Exclusion of arrests from performance measures
Evaluation to receive federal government grants, including the Byrne Justice Assistance Grants (or Byrne JAG), should not include arrest numbers as part of performance measures. When a police department’s arrest numbers are a factor in receiving funding, police are encouraged to increase arrests and to redirect resources toward enforcing low-level offenses instead of promoting public safety and curbing exploitative drug trafficking.
End the enforcement of marijuana possession and distribution
Police departments and municipal government entities should end enforcement of marijuana possession and distribution, as well as a range of other low-level offenses — such as traffic infractions and “quality of life’ offenses — and instead implement non-punitive responses. Aggressive enforcement of low-level offenses unnecessarily funnels hundreds of thousands of people into the criminal legal system — primarily young people of color and particularly Black people.
End racial profiling by police
Police often stop and search people of color based on explicit and implicit biases instead of substantial evidence of wrongdoing. This is racial profiling. The result is the aggressive enforcement of minor offenses in communities of color.
Police departments should adopt model racial profiling policies that define the practice of racial profiling, prohibit law enforcement from engaging in it, and make clear that it is unconstitutional under the Fourth Amendment. A further step that courts and state legislatures should take is to raise the level of suspicion required to stop and briefly detain a person against their will.
Eliminate consent searches
Local governments should ban the use of consent searches, which are searches made by law enforcement based on the consent of the individual whose person or property is being searched. The practice allows officers to circumvent legal standards that require probable cause in order to conduct most searches. In addition, the environment in which police seek consent is inherently coercive, and these searches are used overwhelmingly against people of color.
End the practice of using raw numbers of stops, citations, summons, and arrests as a metric to measure productivity and effectiveness
Law enforcement agencies and individuals should not be evaluated based on the number of stops, citations, summons, and arrests made. Such measures do not accurately reflect public safety and health, and they encourage police to increase arrests for low-level offenses and ramp up their presence in communities of color in order to meet arrest goals or quotas. As a result, true justice is de-emphasized and communities of color may experience justified frustration toward and distrust of the criminal legal system.
To evaluate public safety and police efficacy, police departments should instead study the rate of racial disparities in arrests, the resolution of serious crimes, and the number of complaints filed against law enforcement as a measure of community satisfaction.
Develop systems for the routine collection of accurate data regarding a range of police practices
Police should prioritize accountability and transparency by collecting stop, frisk, search, citation, and arrest data and making it publicly and easily accessible. They must use this data to identify and address racially biased and harmful practices and policies, and to develop strategies and tactics to eliminate racial disparities in enforcement practices.
Invest in non-punitive programs and community-based services and divest from law enforcement
Since the 1980s, the amount of money spent on the criminal legal system has dramatically outpaced spending on community services that help build stable, safe communities. Instead, local, state, and federal governments should work with community members to limit the role of police in communities of color and redirect funds toward other services and non-punitive interventions, such as housing, schools, jobs, public health, and violence prevention programs. This way, jurisdictions can appropriately and adequately address economic, health, and social problems at their root in ways that strengthen rather than sabotage impacted communities.
Develop, secure, and implement strong, independent, and effective oversight mechanisms for local law enforcement
Municipal, state, and federal government entities should develop external oversight agencies that conduct regular audits and review of police departments’ policies and practices. These agencies could take the form of independent prosecutors, inspectors general, strong community oversight boards, or some combination of the three. Community oversight is important because it ensures the community has autonomy to oversee and hold law enforcement accountable, as is appropriate in a democratic society.
The data shows that marijuana legalization is a racial justice issue, and states should approach it as such. The harms of marijuana criminalization inflicted upon communities of color cannot be undone. However, states can chart a smarter, fairer future that uplifts and repairs the people and communities most impacted. The path forward is through incorporating these critical reforms into any legalization package.