How the Push for Legalization Is Missing the Point

It is 2018 and there are nine states an D.C that have fully legalized recreational weed markets, and twenty-nine states have legal medical markets. At this point, most states have some form of legalized marijuana and over half of the population of the US supports legalization according to Pew Research. Despite the efforts of the current justice department to roll back this progress, it is safe to say that legalized weed is a mainstream cause. In the eyes of most, even those against it, or formerly against it like former Republican House Speaker John Boehner, legalized recreational marijuana is all but inevitable. This would appear to be a major blow to the racialized injustice that is the “War on Drugs” that has helped create a mass incarceration crisis in this country. However while the legalized marijuana industry is exploding, the communities most devastated by its criminalization have been left out, in many cases systemically barred from the party.

In each state where recreational marijuana has been legalized it has quickly become an explosive source of revenue. As new as these markets are the data is still being collected, but early numbers are promising. Forbes reports that in 2016 total marijuana sales in North America netted 6.7 billion. In states like Colorado some of that tax revenue is allocated towards schools, homeless housing programs and mental health resources in hospitals and prisons. However only California has implemented policy that will send marijuana tax revenue back to communities hit hardest by the War on Drugs. According to Business Insider, of the projected 1 billion dollar tax revenue, $10 million will go to “support efforts to help communities disproportionately harmed by the war on drugs” which data shows are typically black and Latino. That would increase to $50 million over the next five years.

The effectiveness of this form of tax benefit has yet to be seen as California’s tax provision is the first of its kind put into action. But there is already national support for similar programs on the federal level. In the Senate New Jersey Senator Cory Booker has proposed the Marijuana Justice Act, and California Rep. Barbara Lee has brought it to the House. Their legislation would not just end the prohibition on Marijuana, but dedicate $500 million to a fund to re-invest in minority communities impacted by the War on Drugs. It takes the criminal justice reform a step further by punishing police departments shown to disproportionately arrest minorities for marijuana offenses by cutting federal funding to those departments and preventing the building of new prisons. These specific tax programs are beneficial in starting to repair the damage done by the war on drugs. But they do little to create equity in the emerging marijuana market.

Even if recreational cannabis bills consider affected minority communities in tax revenue, that still ignores the barriers around the industry itself. While allocating tax revenue to public programs is a necessary step, there is still that multi-billion dollar industry that is incredibly exclusive. Legalized weed has gone beyond dispensaries and cultivation centers and sprouted a multitude of new industries. From Cannabis schools to edible bakers to new real estate markets catering specifically to cultivators. New and lucrative jobs are aplenty wherever legalized cannabis goes. A few million in tax revenue spread out among several communities is a petty consolation when compared to six figure salaries or owning your own business.

It is more than the economic barriers to entering the business (starting a dispensary, cultivation or distributor usually takes at least half a million in start-up). Most marijuana legalization laws come with barriers that keep people who have been convicted of marijuana-related crimes from starting or even being employed with a business. The California Prop 64 excludes those with felonies for controlled substance in the past three years from entering the industry. For Colorado it is the past ten years, and similar standards apply in Nevada, Alaska and Maine. However Oregon does allow felons convicted of drug crimes to work in the industry with certain conditions.

While many of these states like California and Oregon offer expungement and sealing of criminal records for marijuana offenses, those expungements policies tend to be limited and difficult to navigate. The laws for expungement in most states only apply to possession or misdemeanor offenses that would not bar individuals from cannabis jobs in many of those states anyway. There are currently no expungement options for convictions in sale or trafficking of large amounts of marijuana in any state. Where there are expungement options, application numbers are depressed by lack of education or legal resources for citizens seeking expungement. Real expungement initiatives require more proactive work, like the move by San Francisco District Attorney George Gascón to automatically dismissed marijuana convictions dating back to 1975. Despite calls by activists, no states have signaled support for commuting the sentences of prisoners currently in jail for marijuana related crimes. That means states with legal recreational marijuana, states making millions of dollars off of that marijuana, still house prisoners in jail for smoking marijuana.

Those felons are put at an even further financial and professional disadvantage when trying to enter any job market, particularly a cannabis or cannabis adjacent market. They suffer the unfortunately typical unemployability of somebody with a criminal record. Even and especially for marijuana industries drug convictions carry particular stigma. Those that work in legal marijuana markets are often users who have never been arrested. Drug convictions are particularly disadvantageous because unlike any violent crime, fraud or sexual assault, a drug conviction can make a student ineligible for federal student loans. Many jobs around cannabis industries from extraction and cultivation to business management require higher education, which is an extremely limited option for felons with drug convictions. Felony drug convictions can also make individuals ineligible for public housing programs, while major corporations are able to purchase large amounts of real estate for farms and cultivation centers.

While most private cannabis businesses are surging toward profit, it is progressive municipalities and local non-profits like NORML that are fighting to institute equity in the industry. In California Oakland has created the Oakland Equity program, designed to help former felons and entrepreneurs from communities of color entering the cannabis industry. They offer financial aid and managerial, logistic and legal support to victims of the War on Drugs seeking to become business owners. These programs are vital, but so far local and the impact is small scale compared to the much larger international cannabis corporations.

The fact is that while the War on Drugs seems to be winding down, the legal drug industry is still almost entirely for the white and wealthy to profit from. According to a non-comprehensive but still representative survey by Marijuana Business Daily, 81% of legal marijuana businesses are owned and managed by white owners. That is a stark contrast to the ACLU findings that african americans are almost four times more likely to be arrested for marijuana possession, even though they have been shown to use at the same rate as caucasians. And while legal marijuana businesses are profiting into the millions, there are still hundreds of thousands of people being arrested for marijuana possession each year.

Surely the mass legalization of medical and recreational marijuana is a success, both for general freedom of American people and in ending the War on Drugs. However if activists continue to march forward in legalization without looking to the past harms from criminalization, or seeing how those affected communities are being treated in the legalized market, they will fail to solve the most essential injustices from the War on Drugs. Legalization needs to be about more than preventing future harm, but healing past damage.

It will take more states follow the examples of Proposition 64 or Senator Cory Booker, and improving upon them in building an equitable market. That means legalization laws need to drop the exclusions of felons, and ensure licensing procedures are equitable and not subject to racial or geographic bias for urban dispensaries. Each of these laws need more comprehensive expungement processes, and to allow resentencing of those currently serving time for marijuana related crimes. And yes there need to be tax revenue programs that take money from marijuana purchases and puts it towards communities that have been over-policed and over-incarcerated in the name of the War on Drugs. It also takes conscious effort from business owners in that market to consider, employ and make space for those who have suffered from criminalized marijuana at the hands of the justice system. Private, profitable marijuana businesses are not a bad thing and can very positive impacts on their communities and customers, but they should not be the end goal of advocacy for legalization. It is up to those businesses, owners, managers and investors, to ensure the profits of their industry are shared with those who have suffered so long for it.


Kohl Neal is a member of Chicago NORML, sits on the Education Committee and is spearheading a guest blogger series inititive.  For more information on contributing to the series, please contact Kohl directly.

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