In states with the worst disparities, Blacks were on average over six times more likely to be arrested for marijuana possession than whites.
The War on Marijuana has largely been a war on people of color. Despite the fact that marijuana is used at comparable rates by whites and Blacks, state and local governments have aggressively enforced marijuana laws selectively against Black people and communities.10 In 2010, the Black arrest rate for marijuana possession was 716 per 100,000, while the white arrest rate was 192 per 100,000. Stated another way, a Black person was 3.73 times more likely to be arrested for marijuana possession than a white person — a disparity that increased 32.7% between 2001 and 2010. It is not surprising that the War on Marijuana, waged with far less fanfare than the earlier phases of the drug war, has gone largely, if not entirely, unnoticed by middle- and upper-class white communities. In states with the worst disparities, Blacks were on average over six times more likely to be arrested for marijuana possession than whites. In the states with the worst disparities, Blacks were on average over six times more likely to be arrested for marijuana possession than whites. In the worst offending counties across the country, Blacks were over 10, 15, even 30 times more likely to be arrested than white residents in the same county. These glaring racial disparities in marijuana arrests are not a northern or southern phenomenon, nor a rural or urban phenomenon, but rather a national one. The racial disparities are as staggering in the Midwest as in the Northeast, in large counties as in small, on city streets as on country roads, in counties with high median family incomes as in counties with low median family incomes. They exist regardless of whether Blacks make up 50% or 5% of a county’s overall population. The racial disparities in marijuana arrest rates are ubiquitous; the differences can be found only in their degrees of severity. Thus, while the criminal justice system casts a wide net over marijuana use and possession by Blacks, it has turned a comparatively blind eye to the same conduct occurring at the same rates in many white communities. Just as with the larger drug war, the War on Marijuana has, quite simply, served as a vehicle for police to target communities of color. The War on Marijuana has, quite simply, served as a vehicle for police to target communities of color. To the extent that the goal of these hundreds of thousands of arrests has been to curb the availability or consumption of marijuana, they have failed.11 In 2002, there were 14.5 million people aged 12 or older — 6.2% of the total population — who had used marijuana in the previous month; by 2011, that number had increased to 18.1 million — 7.0% of the total population.12 According to a World Health Organization survey of 17 countries, 42.2% of Americans have tried marijuana in their lifetime.13 The 2010 National Survey on Drug Use and Health reported similar numbers — 39.26% of Americans surveyed reported having used marijuana in their lifetimes — and over 17.4 million Americans had used marijuana in the past month.14 Between 2009 and 2010, 30.4% of 18- to 25-year-olds reported having used marijuana at least once in the past month.15 All wars are expensive, and this war has been no different. States spent over $3.61 billion combined enforcing marijuana possession laws in 2010. New York and California combined spent over $1 billion in total justice system expenditures just on enforcement of marijuana possession arrests. Had marijuana been regulated like alcohol, and had its se been treated as a public health issue akin to alcohol instead of as a criminal justice issue, this is money that cities, counties, and police departments could have invested in an array of other law enforcement priorities and community initiatives. States spent over $3.6 billion combined enforcing marijuana possession laws in 2010. Marijuana arrests, prosecutions, and convictions have wrought havoc on both individuals and communities, not only causing direct harm but also resulting in dire collateral consequences. These include affecting eligibility for public housing and student financial aid, employment opportunities, child custody determinations, and immigration status. Marijuana convictions can also subject people to more severe charges and sentences if they are ever arrested for or convicted of another crime. In addition, the targeted enforcement of marijuana laws against people of color, and the unsettling, if not humiliating, experience such enforcement entails, creates community mistrust of the police, reduces police-community cooperation, and damages public safety. Concentrated enforcement of marijuana laws based on a person’s race or community has not only been a central component of this country’s broader assault on drugs and drug users, it has also resulted from shifts in policing strategies, and the incentives driving such strategies. Over the past 20 years, various policing models rooted in the “broken windows” theory, such as order-maintenance and zero-tolerance policing, have resulted in law enforcement pouring resources into targeted communities to enforce aggressively a wide array of low-level offenses, infractions, and ordinances through tenacious stop, frisk, and search practices. Indeed, it seems hard to avoid the conclusion that police tactics of effectuating a high volume of arrests for minor offenses has been a major contributor to the 51% rise in marijuana arrests between 1995 and 2010. Adding further stimuli to such policing strategies are COMPSTAT — a data-driven police management and performance assessment tool — and the Byrne Justice Assistance Grant Program, a federal funding mechanism used by state and local police to enforce drug laws. These programs appear to create incentives for police departments to generate high numbers of drug arrests, including high numbers of marijuana arrests, to meet or exceed internal and external performance measures. So we stand at a strange crossroads in America with regards to marijuana policy. On the one hand, as of November 2012, two states — Colorado and Washington — have legalized marijuana; 19 jurisdictions (18 states and the District of Columbia) allow marijuana for medical purposes; a majority of Americans favor both full legalization16 as well as legalizing marijuana for medicinal purposes;17 whites and Blacks use marijuana at comparable rates,18 and many residents of middle- and upper-class white communities use marijuana without legal consequence or even fear of entanglement in the criminal justice system. On the other hand, in 2010 there were over three-quarters of a million arrests for marijuana possession — accounting for almost half of the almost 1.7 million drug arrests nationwide — for which many people were jailed and convicted. Worse yet, Blacks were arrested for marijuana possession at almost four times the rate as whites, with disparities even more severe in several states and counties, and the country spent billions of dollars enforcing marijuana laws. But the right road ahead for this country is clearly marked: marijuana possession arrests must end. In place of marijuana criminalization, and taking a cue from the failure of alcohol prohibition, states should legalize marijuana, by licensing and regulating marijuana production, distribution, and possession for persons 21 or older. Legalization would, first and foremost, eliminate the unfair race- and community-targeted enforcement of marijuana criminal laws; help reduce over incarceration in our jails and prisons; curtail infringement upon constitutional rights, most notably as guaranteed by the Fourth Amendment’s proscription of unreasonable searches and seizures; and allow law enforcement to focus on serious crime.
Furthermore, at a time when states are facing budget shortfalls, legalizing marijuana makes fiscal sense. The licensing and taxation of marijuana will save states millions of dollars currently spent on enforcement of marijuana criminal laws. It will, in turn, raise millions more in revenue to reinvest in public schools and substance abuse prevention, as well as general funds and local budgets, research, and public health, to help build stronger, safer communities.20 Indeed, Washington State’s Office of Financial Management projects that Initiative 502, which legalized the possession of marijuana for people 21 or older under tight regulations, will generate more than half a billion dollars in new revenue each year through a 25% marijuana excise tax, retail sales, and business and occupation taxes.21 The state will direct 40% of the new revenues toward the state general fund and local budgets and 60% toward education, health care, substance abuse prevention, and research.22 At the national level, a CATO Institute study estimated that federal drug expenditures on marijuana prohibition in 2008 were $3.4 billion, and that legalization would generate $8.7 billion in annual revenue.
If legalizing marijuana through taxation, licensing, and regulation is unobtainable, states should significantly reduce marijuana arrests by removing all criminal and civil penalties for authorized marijuana use and possession for persons 21 or older. Under depenalization, there would be no arrests, prosecutions, tickets, or fines for marijuana use or possession as long as such activity complies with existing regulations governing such activities. If depenalization is unobtainable, states should decriminalize marijuana possession for personal use by reclassifying all related criminal laws as civil offenses only, with a maximum penalty of a small fine. In addition to ending marijuana possession arrests, police departments should reform order-maintenance policing strategies that focus on low-level offenses. Instead, law enforcement should address public health questions and safety concerns in ways that minimize the involvement of the criminal justice system by moving toward non-punitive, transparent, collaborative community- and problem-oriented policing strategies. These strategies should aim to serve, protect, and respect all communities. In addition, the federal government should end inclusion of marijuana possession arrests as a performance measure of law en
forcement agencies’ use of or application for federal funds, and redirect such funds currently designated to fight the War on Drugs toward drug treatment, research on treatment models and strategies, and public education.