Centering Racial Equity in the Fight to Legalize Marijuana (ep. 96)

April 22, 2020
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Public opinion on marijuana legalization has shifted in recent years—roughly two-thirds of all Americans are now in favor of national legalization, according to a recent Pew Research Study. However, a new ACLU report called "A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform,” shows that despite legalization and decriminalization efforts, many of them successful, marijuana arrests continue. Black people are 3.64 times more likely to be arrested for marijuana possession than a white person. According to the FBI, in 2018, police made more marijuana arrests than for all violent crimes combined. 

Today's episode features two people who’ve been focused on marijuana legalization and racial equity: Dominique Coronel, a young activist from Illinois whose life has been deeply impacted by marijuana arrests, and Zeke Edwards, the Director of the ACLU’s Criminal Law Reform Project, and a lead author of the report. They are both working to ensure that when legalization or decriminalization measures pass, the Black and brown communities that are hardest hit by prohibition are not left out of the legal cannabis industry.

View the new report here: aclu.org/marijuana

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EMERSON SYKES
From the ACLU, and my home studio in my closet, this is At Liberty. I’m Emerson Sykes, a staff attorney here at the ACLU and your host.

Public opinion on marijuana legalization has shifted in recent years—roughly two thirds of all Americans are now in favor of national legalization, according to a recent Pew Research Study. However, a new ACLU report called "A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform,” shows that despite legalization and decriminalization efforts, many of them successful, marijuana arrests continue. Black people are 3.64 times more likely to be arrested for marijuana possession than a white person. According to the FBI, in 2018, police made more marijuana arrests than for all violent crimes combined.

Joining us on the podcast today are two people who’ve been focused on marijuana legalization and racial equity. They are both working to ensure that when legalization or decriminalization measures pass, the black and brown communities that are hardest hit by prohibition are not left out of the legal cannabis industry. First we’ll hear from Dominique Coronel, a young activist from Illinois whose life has been deeply impacted by marijuana arrests. Then, I’ll speak with Zeke Edwards, the Director of the ACLU’s Criminal Law Reform Project, and a lead author of the report.

DOMINIQUE CORONEL
[00:01:27] So, marijuana arrests and the war on drugs in general is not an abstraction for me. I have been incarcerated myself for cannabis. And as a child, I lost my mother to drugs and addiction, and my father was part of the drug trade and I lost him to incarceration as well.

EMERSON
This is Dominique Coronel, a college student from the suburbs of Chicago. Drug criminalization has created immense disruption in his life.

DOMINIQUE
[00:01:59] As a child, when I was 7 years old, the DEA broke down our door, pointed guns at our bodies, screamed at us to get on the floor. To this day, I still have nightmares about that moment.

Certainly I've seen firsthand the disproportionate effects that our criminal justice system can have on people of color. And I've lived it. And it's certainly not a unique tale. It's the story of black and brown youth in the south and west sides of Chicago. It’s the story of migrant refugees fleeing poverty and violence by the drug cartels in Central and South America. It's sort of a universal story. And it's led me to want to make a difference to prevent that from happening to other black and brown kids and people in general.

EMERSON
[00:02:52] Dominique began using and selling marijuana in high school to cope with his family’s situation and to pay for college. Then, he was arrested.

DOMINIQUE
[00:02:59] I was on my own, you know, battling homelessness and trying to overcome my experiences. Cannabis was an outlet and a tool that could help to pay for my tuition. And I remember the feeling in the pit of my stomach when I saw the red and blue flashing lights. And I knew I knew something bad was gonna happen. I sort of flashback to the DEA breaking down my door when I was a kid and all these emotions and just a rough feeling started flowing through me.

I recognized right away that the school to prison pipeline was real and that anecdotally, at least, a lot of my black and Latino friends would get caught up with weed, whereas my white friends somehow, their parents had lawyers or they got lucky. But it was very clear that whether it was suspensions or arrest rates for poor young black and brown kids in my hood, that things weren't applied equally, that the laws weren't applied equally.

EMERSON
[00:04:06] Zeke, thanks so much for joining us. We just heard from Dominique Coronel, whose story gives the qualitative information, the personal story, of how these arrests impact people. But I'm wondering if you can tell us some of the legal story. How did marijuana first become illegal in the United States?

ZEKE EDWARDS
[00:04:23] So the government has understood for more than a century that it could use the criminalization of certain drugs to persecute certain communities. This started actually in the 1880s with opium laws targeted at Chinese immigrant workers because of a perceived threat to American jobs. The first anti-cocaine laws in the first part of the 20th century were directed at black men in the South. And then the first anti-marijuana laws were actually targeted at Mexican migrants and Mexican-Americans, again, out of racism and fear. So to be clear, drug prohibition as practiced in America, has never been about science. And at their inception, drug laws haven't been about drugs or crime. It's been about associating certain drugs with certain groups. It's been about fear of those groups and it's been about greed. And particularly in the latter half of the 20th century and part of this century, it's been about scoring political points and scapegoating and controlling certain communities that are perceived as threats to jobs, to status and really to white supremacy. So the war on drugs, of which the war on marijuana has played a major part and I'll talk about that, has really been about a story about the government turning on its own people. And when the government turns on its own people, it usually does that targeting the marginalized. That's what the war on drugs has done. It has fostered by design community destruction. It has orphaned children. And whatever harm drugs themselves have done, which, of course, drugs can be harmful, the drug war has done much worse. We talk a lot about family separation under the Trump administration at the border. Our government has been separating parents from children for decades through the enforcement of drug laws.

EMERSON
[00:06:14] So tell me about this specific situation with marijuana because it's not a well understood story, the fact that it was originally targeted at Mexican migrants. How did it become illegal, and target those particular folks?

ZEKE
[00:06:28] The government realizing that if you suddenly criminalized it and then selectively enforced it against those groups, you could conveniently arrest, incarcerate, criminalize, deport, etc groups of people that were not popular that you feared were taking your jobs or that would score you political points. That's what marijuana was used to do against both Mexicans and then soon after blacks in the 30s and 40s. But then this really kind of ramped up when President Nixon in the late 60s and early 70s declared a war on drugs. And one of the key components of that war was marijuana prohibition. It is telling that President Nixon's counsel and assistant to the president for domestic affairs, John Ehrlichman, several decades later, said the following. And I'm going to quote here. He said the Nixon campaign in 1968 and the Nixon White House after that had two enemies, the anti-war left and black people. We knew we couldn't make it illegal to be either against the war or black, but by getting the public to associate hippies with marijuana and blacks with heroin and then criminalizing both heavily, we could disrupt those communities. And that is essentially the story of marijuana criminalization in this country. It was about going after people in communities. It wasn't actually about marijuana. Which is why when the Controlled Substances Act was passed in 1970 and marijuana was temporarily supposed to be placed as a Schedule 1 drug in the Controlled Substances Act, which are drugs that have no current accepted medical use and a high potential for abuse alongside like heroin and LSD. After a commission that was led by a Republican created by President Nixon unanimously recommended two years later to decriminalize the possession and distribution of marijuana for personal use. President Nixon ignored that report, rejected its recommendations, left marijuana as a Schedule 1 drug where it still remains today. And in the decades since, particularly ramped up in the Reagan years, drug and marijuana enforcement have been rampant and have been a top priority of the government and of law enforcement across the country.

EMERSON
[00:08:39] I know the ACLU report has a lot of data and analysis. Can you just give us a sense in numbers, what the impact has been of the criminalization of marijuana on black and brown communities?

ZEKE
[00:08:50] Yeah, over the last 40 years there has been millions and millions of arrests and billions of dollars spent. But I'll focus on our report which focused on the last eight years between 2010 and 2018. The one piece of good news, I guess, is that marijuana arrests in the United States have trended downwards in the last eight years. I think this is in large part because as you mentioned in the intro, several states have legalized marijuana. We have 11 now, plus Washington, D.C. that have legalized. And some of those states are large states like California, fairly large, like Colorado and Washington. So we've seen marijuana arrests and arrest rates drop by around 15 percent in the last eight years. However, important things to note: one is that line was rather jagged. In other words, it wasn't a straight drop. Some years it would go up. Some years it would go down. And recently they've started to increase. So, in fact, both the number of marijuana arrests around the country and arrest rates were higher in 2018 than they were in 2015. In addition, in 2018 alone, despite a general trend across the country of liberalizing marijuana laws and a significant majority of the American public approving of legalization, in 2018 alone, there were almost 700,000 marijuana arrests. And in fact, if you included data from Florida and Washington, D.C., which we were not able to get, it would be over 700,000 marijuana arrests. 90 percent of those were for possession. So it's mostly people who are possessing marijuana for personal use. In 17 states, marijuana arrest rates actually increased in the last eight years. And at no point in those eight year years did marijuana arrests drop below half a million. And so while there has been a decrease, marijuana is still a prime target of the drug war. There are more marijuana arrests than for any other drug arrests. In the US. Marijuana arrests accounted for 43 percent of all drug arrests and more than for all violent crime combined. So if you're using the war analogy, you could certainly say that while, you know, maybe slightly fewer shots are being fired, the war is still raging.

EMERSON
[00:11:06] I'm going to come back to the idea of the public opinion shift, because that's a massive thing that's happened over the last maybe decade and a half. I think, you know, one can only think of a handful of issues where the public has moved so massively in such a short period of time. What do you think has prompted that shift in public opinion?

ZEKE
[00:11:25] I think, first of all, there have been states that have led the way. States can often be these laboratories of experiments when other states are lagging or the federal government, right, which still categorizes marijuana as the most serious drugs, are still kind of regressive in their policies. I think once Colorado and Washington legalized marijuana back in 2012 and the sky didn't fall, revenue started to come into the state coffers, use did not grow significantly. Other states started to realize that this was something that they could do. They could take their precious law enforcement resources and direct them in to solving actual serious crimes that they could tax and regulate marijuana, like other substances, like alcohol, like nicotine, in a way that sent a public health message, but also generated revenues and jobs for those states. And then several other states have followed. I think it's also going to realize that prior to legalization, there were several states that legalized medical marijuana before full legalization.

[00:12:29] Now, even though that was specifically for medicinal purposes, I think it helped the public understand that marijuana is actually less harmful than had been advertised for decades. In fact, had uses that were quite important medicinally. And so I think that also softens public opinion. And then I think decades of over policing, over incarceration, our jails being crowded, the astronomical increase in the number of people in prison generally, the number of people in prison for drugs both at the federal or state level and the kind of work by activists and grassroots organizations, communities most harmed. And groups like the ACLU and the Drug Policy Alliance consistently educating folks that this has been a failure. It's been a failure in terms of human cost, monetary policy, drug policy, that this is a public health issue that we need to deal with in public health terms, not in criminal punishment terms.

EMERSON
[00:13:26] Well it's a massive victory for the advocates who have been pushing for this type of reform. And I'm interested in talking a little bit more about the strategy. You mentioned medical marijuana, for example, where, you know, as a stepping stone, understanding that marijuana is not as harmful as people thought it was on some sort of scientific basis, was a powerful argument, particularly for folks for whom it was not a culturally relevant issue. But I know that increasingly folks have been insisting that this sort of racial equity dynamics around how marijuana was used and criminalized, as you mentioned, has to be central to any discussion around legalization. So I've always thought about the medicalization as, in many cases, not in all cases, but in many cases it was a kind of a legal fiction. You go to some doctor, quote unquote, and get a prescription. And everyone, it was a bit of a wink and a nod, but in some ways it might have paved the way. So I wonder if you can talk about the values, but also the risks of the incrementalism and the use of medical marijuana, because it wasn't an overtly racialized narrative.

ZEKE
[00:14:32] You raise a fundamental and critical point. Indeed, the movement to legalize marijuana in its inception was largely a white led movement for the benefit of white people. It was white business owners and entrepreneurs who are reaping the fiscal benefits. The face of that movement tended to be white medical marijuana patients, and access to licenses and to such medicine was predominantly made possible for white people. We put out a report on marijuana arrests back in 2013 called the War on Marijuana in Black and White. And the purpose of that report was to reframe the debate about marijuana legalization as one of racial equity and racial justice because of the history of targeting of black communities for marijuana enforcement that has been going on for decades. And we found massive racial disparities back then across the country and in our new report, unfortunately, we find that those racial disparities persist with the same fervor as they did 10 years ago. We found that blacks were 3.64 times more likely to be arrested than white people for marijuana possession, despite the fact that we know that whites and blacks use marijuana at comparable rates. In every single state in the country, blacks were more likely to be arrested for marijuana possession than white people in some states. In the largest states with states where disparities were largest, blacks were up to 7, 8, 9 times as likely. There are only five states in the country where black people were less than twice as likely to be arrested for marijuana possession as white people. In 31 states the racial disparities were larger in 2018 than 2010, and in nine states those increases were by more than 50 percent. We also know, we not only looked at states, we looked at counties. And when considering counties with populations of more than thirty thousand people and more than one percent black population with enough data coverage for us to analyze, which by the way, we covered 81 percent of the U.S. population. In over 96 percent of those counties, blacks were arrested at higher rates for marijuana possession than white people. And in some of them, blacks were 20, 30, 40 times more likely to be arrested. So we know that the racist enforcement of marijuana laws, which is nothing new in this country but has persisted even as marijuana has become more societally acceptable and reform is taking place. It is true that even though in states that have legalized marijuana, racial disparities were lower than in states where it was illegal or where it was decriminalized only, there were still disparities.

EMERSON
[00:17:16] One of the really helpful features of the report is a state by state guide for what the state of marijuana legalization and arrests are. And we're both based in New York. And as I understand it, in New York, it's more of a situation of decriminalization. Legislation has been introduced to legalize, but we're more than that more in a decriminalization situation. Can you highlight the difference between legalization and decriminalization?

ZEKE
[00:17:42] Sure. So more states have decriminalized than have legalized in some states decriminalize before they legalize. The primary difference is that when you decriminalize, you are removing criminal penalties, but you are keeping in civil penalties for possession and use, so can still allow police to stop people, hand out infractions, order people to pay fines. And there's no kind of revenue generation from the production of marijuana. And so what our data found was that racial disparities in states that had decriminalized are no different than racial disparities in states where it was illegal and arrests do drop somewhat under states that have decriminalized, but not nearly as precipitously as states that have legalized. And so certainly our position is that decriminalization is better than prohibition because we don't want to be giving people criminal records and increasing the number of arrests. However, legalization is a far better step than decriminalization, both because, one, we know that it lowers arrests and disparities far more significantly. And because what it does is it creates a regulated market that actually allows states to generate significant revenue that they then can use. If you are centering this in racial equity, as states are increasingly going to do, in repairing communities most harmed, in developing funds to better fund schools, to better fund public health programs, to better fund drug education, to allow people and small businesses, particularly in communities that have been most harmed by the drug war, to gain access to a marijuana market that reaps significant amount of money for states.

EMERSON
[00:19:27] So how do we get there? What does the report recommend in terms of our actions and what else is the ACLU doing to try to achieve legalization?

ZEKE
[00:19:36] So the prime recommendation is to legalize marijuana. But we recommended that back in 2013. The difference is we are seeing much more clearly today that it has to be legalized in a way that is grounded in racial equity and repair. If you legalize without ensuring that communities whose economic health has been most compromised by prohibition that they don't benefit from the business and fiscal benefits, then we will have missed a critical opportunity to right the wrongs of the drug war and create a level playing field going forward and avoid perpetuating other forms of inequality going forward. So our recommendation or prime recommendation is to legalize in a way that is grounded in racial equity.

We also have recommendations for law enforcement because, of course, they're at the front end of marijuana enforcement. The simple recommendation is to end the enforcement of marijuana possession and distribution, also to end racial profiling in a way that takes place in cities around the country where people are stopped and searched based simply on their race, not based on any actual reasonable suspicion or probable cause. Stop this kind of mentality where the number of arrests you make, no matter how minor, is somehow a sign of productivity that you then use to seek additional funding, secure more stronger independent oversight agencies that can track police departments and how they're spending their precious resources and ask police to collect a much better and more reliable data so that we can analyze how they are using their time and that they can kind of focus in on doing actual investigations of serious offenses and not wasting their time on what is really a public health issue and particularly doing so in such racist ways.

EMERSON
[00:21:13] And legalization is big business. I mean, this is a huge industry that is being created out of nothing and black and brown folks have been largely shut out.

ZEKE
[00:21:23] That's right. Which is why it's so critical that when states legalize, they do so with a specific aim that can be written into legalization statutes that black communities, black entrepreneurs, black workers can gain from legalization and reap some of the significant wealth benefits, particularly given that their communities have been economically devastated by the drug war and specifically the war on marijuana. So, for instance, in Colorado, which legalized, as we know about eight years ago, since 2014, Colorado has generated 1 billion dollars in revenue for the state. It also will use those funds to create vocational programs, technical skills to people who want to start a cannabis business, agricultural training, grants for entrepreneurs, low interest loans. That is the kind of legalization that we think is critical and will really improve and lift up many folks in communities, particularly those most harmed. We would want governments to grant clemency or resentence anyone who is currently in jail or in prison for marijuana offenses, to expunge marijuana convictions so those don't hold people back going forward, eliminate collateral consequences that flow from having had convictions for marijuana on again, on housing and on job employment, on parental rights and ensure that new legal markets benefit those communities most.

I would like to lift up that in Illinois, The Cannabis Regulation and Taxation Act created social equity programs. It created a business development fund designed to benefit businesses whose employees and owners reflect the populations that have been most targeted by the war on drugs. And allowing exclusive ownership or control for people who come from areas where at least 51 percent of residents have been disproportionately impacted by the war on drugs.

EMERSON
[00:23:23] Dominique is one of those Illinois residents. While in college, he discovered a group called Students for Sensible Drug Policy and got involved. He now serves on the group’s board of directors. Dominique advocated for marijuana legalization in Illinois and helped ensure that the law included racial equity provisions.

DOMINIQUE
[00:23:43] Part of what we advocated for was a $20 million low interest loan program to diversify business ownership. And of course, the R3 program, the Restore, Reinvest and Renew program, where I believe it's 25 percent of cannabis tax sales in Illinois are going to help a fund that's going to be redirected back into what are deemed disproportionately impacted areas. And so that was pretty unique that we decided to set aside a significant amount of revenue as restitution or indemnification and really dedicate ourselves and commit to making sure that all of this money is actually going to go for the greater good. And I know that's something that a lot of states like New York are looking at and haven't yet committed to. But in Illinois, that's something we really fought hard for.

EMERSON
Dominique is now looking to get into the business and is rallying for other people who have been impacted by prohibition, to join in.

DOMINIQUE
[00:24:41] It's really just been a blessing from God or or sheer dumb luck that I've been able to work with so many powerful folks in the Minority Cannabis Business Association. A year and a half ago, I was homeless sleeping on the L train trying to do not pay my fare because I didn't have enough money to do so. Just trying to sneak on the train to get to class and scraping by. You know, not knowing where I was going to sleep at night or what I was going to eat that day. And somehow through hustle or bustle or some divine intervention, I was able to just make it to where I was able to find opportunity in a big city like Chicago. And, you know, my family crossed borders for me to get here and a lot of them died along the way. And some time ago, my ancestors brought the cannabis plant from Mexico to the United States. And I think it is poetic justice that now you have some scrappy Chicano kid from the streets that is gonna be a major player in this industry and is going to change this industry for the better.

EMERSON
Thanks very much for listening. If you enjoyed this conversation, please be sure to subscribe to At Liberty wherever you get your podcasts and rate and review the show. We really appreciate the feedback. Until next week, peace. And wash your hands. And stay home.

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