Marijuana prohibition has a history of racism, and it continues to be enforced unequally. An ACLU study found African Americans are 3.73 times more likely than whites to be arrested for marijuana possession, despite similar rates of marijuana use. Ending marijuana prohibition dramatically reduces the number of arrests, but much more can be done to foster equity when legalizing marijuana, including by ensuring the legal marijuana industry creates opportunities for those who have been harmed the most by prohibition. However, equity provisions must be careful to avoid running afoul of constitutional restrictions.
Here are some provisions that should be considered:
Criminal Justice Provisions
- Avoid perpetuating racial disparities in arrests by avoiding unnecessary criminal penalties.
- Public consumption should be a civil — not criminal — offense.
- Adults should be allowed to share cannabis with other adults.
- Adults should be allowed to securely cultivate a limited amount of cannabis.
- The law should decriminalize simple possession of marijuana for people under the age of 21.
- Possession limits should be clear and include specific limits for infused products so adults don’t accidentally exceed the limits.
- Parole and probation should not be able to be revoked for conduct allowed by the bill, including for testing positive for THC, unless there is a specific finding that the individual’s use of marijuana could create a danger.
- Include automatic expungement and re-sentencing for conduct that is legal, funded by some of the tax revenue.
- Allow for expungement and re-sentencing for other marijuana offenses, directing the courts to consider whether such relief would be in the interests of justice in light of marijuana becoming legal and past racial disparities. Sufficient revenue from marijuana taxes should be allocated to provide assistance with these petitions.
- Provide for licensed, regulated spaces with on-site consumption to ensure individuals who cannot consume cannabis at home — including residents of federally subsidized housing — are not shut out.
- Landlords should not be allowed to prohibit tenants from possessing marijuana or using it in a non-smoked form.
Funding Services to Reduce Mass Incarceration and to Assist Those Harmed By Marijuana Prohibition
- Allocate a significant portion of tax revenue to serving economically disadvantaged persons in communities disproportionately impacted by high rates of arrest and incarceration for marijuana offenses. This can include scholarship assistance, affordable housing, jail diversion services, expungement services, re-entry programs, workforce development, technical assistance, mentoring services, and/or no- or low-interest loans to cannabis-businesses operated by individuals from impacted communities.
Promoting Equity in Marijuana Business Licensing
- The regulatory agency should be required to establish reasonable application and licensing fees and process applications expeditiously.
- Any limitation based on past convictions should be as narrowly crafted as possible and should not include non-violent drug offenses, with possible exceptions for sales to minors or violations of the cannabis regulation law.
- Local control should not include “host community agreements,” which favor those with deep pockets and connections.
- If cannabis is regulated by an appointed board or commission, at least one lead regulator should be from a community disproportionately harmed by the drug war or should have a background in civil rights.
- Regulators should be required to develop procedures and policies to promote and encourage full participation in the regulated marijuana industry by people from communities that have previously been disproportionately harmed by marijuana prohibition and enforcement and to positively impact those communities. These could include:
- engaging in outreach to diverse groups before licensing begins to encourage them to apply;
- requiring a disparity study before rules are issued, along with any actions justified by it (the study is important to withstand constitutional scrutiny for any measures that include considerations of race);
- for any licenses that are awarded based on a competitive application system, including points for minority-owned businesses;
- giving equity applicants a head start to apply to operate some or all types of cannabis businesses, possibly in conjunction with existing medical cannabis businesses;
- providing for a variety of license types, including types that require less capital, such as delivery companies and small product manufacturers; some license types could be limited solely to equity applicants;
- requiring any larger cannabis business to retain a diversity officer;
- requiring reporting by each cannabis business to regulators on the diversity of its workforce and management and requiring reporting from the state to the public on diversity in the cannabis industry;
- tying the expansion of cannabis businesses to multiple locations to whether they benefit the community in certain ways, including by having diverse ownership, management, and workforces; this could also consider environmental stewardship, paying living wages, and hiring people with past drug convictions;
- promoting investment in equity applicants by allowing investors to invest in more businesses if they meet criteria as equity applicants, which would include considerations of minority ownership and whether principals resided in communities that have been disproportionately harmed by drug prohibition and marijuana arrests for a significant amount of time; and
- creating a program to provide technical assistance to equity applicants.