The Unbearable Whiteness of Legalization

by Rebecca Burns on February 20, 2014

Who benefits from marijuana law reform?

More than half of all drug arrests are for marijuana-related offenses, according to a June 2013 study by the American Civil Liberties Union. So it was big news for drug-lawreform activists when, in January, legal sales of marijuana for recreational use commenced in Colorado. Thanks to a 2012 state ballot initiative, the drug will now be taxed and regulated like alcohol. Washington state is set to implement similar laws later this year, and nationwide, the tide of public opinion seems to be turning: An October 2013 Gallup poll found that a majority of Americans now support marijuana legalization.

Many have hailed the easing of marijuana laws as a breakthrough in the fight to end the War on Drugs. But others are skeptical. David Simon, creator of the popular television show The Wire, suggested that marijuana reforms could actually set back broader efforts, telling an audience in London last summer, “I want the [drug war] to fall as one complete edifice. If they manage to let a few white middle-class people off the hook, that’s very dangerous.” While voters in the relatively white states of Colorado and Washington have backed reform, it still looks a long way off in states with the highest numbers of incarcerated African Americans, such as Iowa, where African Americans are more than eight times as likely as whites to be arrested for marijuana possession, according to the ACLU report.

In These Times asked three experts to discuss whether people of color will reap the benefits of marijuana legalization. Joining the discussion were Chicago-based activist Mariame Kaba, founding director of the non-profit Project NIA, which works to decrease youth incarceration; David J. Leonard, associate professor in the department of critical culture, gender and race studies at Washington State University, and Art Way, senior drug policy manager at the Drug Policy Alliance in Colorado, which lobbied for legalization.

What impact can we expect Colorado and Washington’s new laws to have on drug-related arrests?

Art: There will be a disproportionate benefit for those who have borne the brunt of marijuana prohibition. African Americans are about three and a half times more likely to be arrested [in the United States for marijuana-related offenses] than their white counterparts; Latinos are about two times more likely. We’re setting a paradigm that hopefully many other states will follow.

One worry has been that the high price of legalized marijuana will encourage a black market and that arrests for illegal distribution could actually increase.

Mariame: I’m very concerned about how this is going to play out on the ground. Young people who are selling drugs because they have no other job opportunities are definitively not going to be able to participate in the formal economy through the dispensaries. Is law enforcement going to go after those young people 20 times harder now?

Art: Yes, I am concerned that distribution charges will increase. Whenever you make change, especially against law enforcement’s status quo, it often finds a way to circumvent that change and maintain its budget. But we haven’t seen anything that will lead us to believe that is taking place right now. And you have to realize that these new marijuana laws are part of a much broader reform movement: Colorado has also been revising its criminal justice laws. The first thing we did once Amendment 64 passed [in Colorado] was to lower criminal penalties for those [between the ages of] 18 and 20 possessing marijuana. So we are already working on preempting any type of net-widening.

What impact will marijuana legalization have on the War on Drugs as a whole?

David: Any changes in the War on Drugs will require continued organizing and agitation, because history has shown that one step forward has also resulted in two steps back [for] communities of color. New York decriminalized marijuana in 1977. That clearly did not lead to the end of the War on Drugs in New York, or lessen its effects on communities of color. Instead, the way the law was written provided the foundation for stop-and-frisk, because the law made it a misdemeanor for marijuana to be in public view, which basically fostered incentives to stop blacks and Latinos and tell them to empty their pockets. So I have a number of concerns about the impact of these reforms on the War on Drugs. To give just one other example: Does decriminalization apply to those who are on probation and being drug-tested?

Mariame: Another concern is whether, as the prices of marijuana start climbing [because of legalization] and [poor] people turn to using other kinds of drugs, those drugs then get painted as the worst possible drugs on the planet. The people who are doing the “worst” drugs somehow always happen to be the most marginalized people within our culture. That’s why it’s so important that we focus on uprooting the whole architecture of the War on Drugs. If we’re not talking about the root issues of racism and classism, there are bound to be unintended consequences.

Art: It’s true that marijuana reform is just one aspect. The whole question is: Why are we criminalizing people for what they decide to put in their bodies? It’s also important to note that the drug war is a federal policy; states receive money from D.C. to engage. When Washington and Colorado legalized marijuana, they basically removed themselves from federal policy regarding marijuana prohibition. I think that will provide momentum to change federal policy regarding other substances. I don’t see the unintended consequence [that the War on Drugs would] somehow become more and more entrenched when it comes to cocaine and other drugs.

Legalization is expected to be a boon for state coffers, as well as wealthy investors and so-called “ganjapreneurs” now flocking to Colorado. But do you think it will create jobs or other economic benefits in communities of color?

David: In some ways this looks like a gentrification of the drug—those who always benefit will still benefit.

Art: I’m not aware of any industries that began with the intention to create jobs for African Americans or poor people of color. No one said that this was some type of panacea for the various root problems that African Americans face. It’s difficult for people to find work if they have a drug conviction on their record, especially a felony, and that’s still the case within the marijuana industry in Colorado—although there was a successful push to make sure that only people with felonies relating to distribution of drugs are kept out. Many of the concerns about who benefits are valid, but I don’t think they should overshadow that we’re moving in the right direction.

What comes next for reformers?

Art: You are likely to see medical marijuana [initiatives] in Florida within a year’s time that will break open the discussion down South and begin reform efforts there. It doesn’t change the day-to-day reality in Louisiana and the South Side of Chicago right now, but persuasive reform efforts will start to plant seeds across the country, as well as in our federal government.

David: What’s fundamental to understanding the War on Drugs and the broader prison industrial complex is that it is a complex—an interrelated system—and changing the laws in two states, while a step forward, does not cut off the legs of this broader system.

Mariame: I’m hopeful that these [laws] are going to have a real positive impact on reducing the prison population. I’m interested to see whether the young people who are selling—and who need to in order to survive and take care of their families—would be able to participate in the formal rather than the informal [drug] economy. I’m interested to understand how the incentives for law enforcement will change in terms of going after our young people. But I tend to be suspicious of using laws to bring social justice, because I don’t think law and justice are the same. That ambivalence is born out of experience of seeing laws pass, and seeing them not do what they were supposed to do for the young people that I care about and love. There’s always been a decoupling of the laws we have on the books from the very oppressive ways that they’re enforced against people who have no political power. So I’m interested to see how this all plays out.

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