The Case for Marijuana Reparations

The war on weed was foolish and costly. If we can admit that, then we should also be able to admit that it’s time to make amends to those who were most harmed by those laws.

Fairness and Equity Act
Blacks are 3.73 times more likely than whites to be arrested for marijuana possession, with an arrest rate of 716 per 100,000.

Photo by Andrew Burton/Getty Images

Marijuana legalization has a new, influential advocate: the New York Times.

On Sunday, the Times editorial board began a six-part series on marijuana legalization with an op-ed titled “Repeal Prohibition, Again.” “It took 13 years for the United States to come to its senses and end Prohibition,” writes the Times. “It has been more than 40 years since Congress passed the current ban on marijuana, inflicting great harm on society just to prohibit a substance far less dangerous than alcohol.”

From there, the newspaper’s editors hit the points common to any argument for legalization. “We believe that the evidence is overwhelming that addiction and dependence are relatively minor problems, especially compared with alcohol and tobacco,” it argues, noting the scant evidence that moderate use is harmful to “otherwise healthy adults.” And while the Times is relatively silent on thornier issues with legalization—like the consequences of greater marijuana intoxication on public safety or the difficulty of crafting an effective regulatory regime—the broad point is sound. We can handle a world of legal marijuana—and the costs of not trying have proven too great.

An element that looms large in the Times analysis is the disparate impact of marijuana enforcement on blacks and Latinos. From 2001 to 2010, according to a 2013 report from the American Civil Liberties Union, blacks and whites had roughly equal rates of marijuana use, with small variations from year to year. Among young people ages 18 to 25, usage rates were higher for whites, and overall, more blacks than whites say they’ve never tried marijuana.

Nevertheless, blacks are 3.73 times more likely than whites to be arrested for marijuana possession, with an arrest rate of 716 per 100,000 for blacks to 192 per 100,000 for whites (compared to a national average of 256 per 100,000). What’s startling is that the total marijuana arrest rate has increased by nearly one-third since 2001, while at the same time, the rate for whites has remained constant, a sign that blacks account for the bulk of new arrests. And this dynamic is persistent across the country, from Washington D.C.—where the arrest rate for blacks is 8.05 times greater than for whites—to Alaska, where it’s “just” 1.6 times greater. Nationally, nearly one-half of our 1.7 million drug arrests are for marijuana possession.

It’s true that few marijuana arrests result in prison time. Roughly 40,000 state and federal inmates have current marijuana convictions, and the majority of those are for sale and distribution. “Less than 1 percent … are serving time for marijuana possession alone—and in many of those cases, the possession conviction was the result of a plea bargain involving the dismissal of more serious charges,” write drug policy scholars Beau Kilmer, Jonathan P. Caulkins, Mark A.R. Kleiman, and Angela Hawken in Marijuana Legalization: What Everyone Needs to Know.

But even if they don’t lead to prison, these arrests bring people into the criminal justice system. “A simple arrest for marijuana possession can show up on criminal databases as ‘a drug arrest’ without specifying the substance or the charge, and without clarifying even whether the person was convicted,” notes law professor Michelle Alexander in The New Jim Crow, “These databases are then used by police and prosecutors, as well as by employers and housing officials—an electronic record that will haunt many for life.” The ACLU, for example, provides the story of one Texas man, Nick Smith, who spent three months in jail for possession.

Obviously, federal marijuana legalization would put an end to a world where simple possession can derail a person’s life. But legal weed—and more importantly, a legal market for weed—won’t do anything for the individuals and communities wrecked by our aggressive and disparate enforcement of past marijuana laws.

What’s more, it’s troubling to think of the distribution of profits in an America of legal weed. Thanks to their criminal records, many of the young black men who were victims of marijuana policy won’t have a chance to capitalize on the new permissive environment. Opportunities will go to mainstream businesses, run mostly by well-off white Americans.

That’s been the situation in Colorado (where blacks are 1.9 times more likely to be arrested for marijuana possession) where marijuana was legalized in 2012 following a statewide referendum. It’s not hard to find the demographics on the state’s pot entrepreneurs, who—like many new business owners—rely on loans and personal wealth to get their start, an avenue unavailable to many people of color.

For these marijuana entrepreneurs, Colorado is a vibrant market for turning a profit. According to a recent report from the Colorado Department of Revenue, statewide demand for marijuana is at 121.4 tons a year, a 31 percent increase from previous estimates. Indeed, in its first four months of legal marijuana, the state collected $11 million in taxes from commercial pot and $7 million from its medical cousin. It’s not hard to imagine a national market for marijuana that reaped billions of dollars in sales and generated hundreds of millions in tax revenue, with little going to the communities most affected by past prohibition.

In Colorado, voters have earmarked weed revenue for school improvements and other local services. Let’s say America follows suit and adopts the state’s model for legalization and commercialization. What should we, as a country, do with our marijuana windfall? The easy answers are the usual services and benefits: food stamps, unemployment insurance, medical benefits, and tax cuts.

But we should think deeper. If we legalize marijuana, it won’t just be for new revenues and savings. In part, it will be because we recognize the tremendous injury we’ve done to countless young men and women over decades of unfair enforcement of the law. Consider Attorney General Eric Holder’s decision to sidestep mandatory minimums on minor drug charges. “Although incarceration has a role to play in our justice system, widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable,” he said. “It imposes a significant economic burden—totaling $80 billion in 2010 alone—and it comes with human and moral costs that are impossible to calculate.” I wouldn’t be shocked to hear similar language from pro-weed politicians if marijuana legalization becomes a major national issue.

We can’t always heal injury, but we can acknowledge and compensate for it. Any plan for legalization should come with a plan for reparations for those communities most damaged by our misguided war on marijuana. That doesn’t mean individual payments—the logistics are too difficult—as much as it does policies for affected communities, from job training and educational services to something like My Brother’s Keeper, all funded by a surtax on marijuana sales and distribution.

We can’t wash our hands of our past mistakes. The war on drugs—and the war on weed in particular—has been a disaster and a burden for millions of Americans and their communities. We can’t fix all of the damage, but as we wind down the conflict and liberalize our laws, we should do our best to make amends.