Posted by Thomas Nephew on December 19th, 2013
Substance abuse policy is hard; on the one hand, no one wants more harm from the overuse of alcohol or drugs. Those harms vary in intensity from one substance to the next, but include both harms to users from addiction, risky behaviors like needle sharing, or direct physical effects on the body and brain, and harms to others from unsafe behavior or criminality to support the costs of substance abuse.
On the other hand, neither should anyone want drug policies that are unnecessary, ineffective, and/or unfair. While some drugs may warrant continued prohibition as too addictive and/or too harmful, there’s always the question: on exactly what basis does society arrogate to itself the right to tell individuals what they can or can not consume?
It’s instructive, I think, that U.S. constitutional history very much points to a “hands-off when possible” approach: the 18th Amendment experiment of alcohol prohibition, ratified in 1920, was followed, very quickly indeed, with its repeal by the 21st Amendment in 1935. The American people considered the issue, and decided that alcohol — still by far the most widely abused substance of abuse reported by treatment admissions — is nevertheless not a substance that inevitably or usually brings about overconsumption, addiction, or long-term impairment, and that its prohibition caused problems worse than its legal availability ever had. Instead, we regulate alcohol consumption and sales by taxation, by restrictions on when and where it can be sold, by seeing to it as best we can that minors can’t obtain it, and by cracking down on unsafe behaviors like driving under the influence.
It’s time we did the same with marijuana.
Racial disparities in marijuna possession arrests
Black/White marijuana possession arrest rate ratios, by Maryland
county, 2010. Source: “The Maryland War on Marijuana in Black and
White,” ACLU Maryland. (2013). Click image to enlarge.
Source: “The Maryland War on Marijuana in Black and White,”
ACLU Maryland. (2013). Click image to enlarge.
Why? To me, the strongest argument is that marijuana laws are manifestly unequally enforced and thus manifestly unjust: in a recent national study, “The War on Marijuana in Black and White,” the ACLU has shown that in state after state, and county after county, black Americans* are arrested for marijuana possession at rates generally anywhere from twice to eight times that of white Americans — despite basically identical marijuana usage:
The War on Marijuana has largely been a war on people of color. [...] In 2010, the Black arrest rate for marijuana possession was 716 per 100,000, while the white arrest rate was 192 per 100,000. [...] In states with the worst disparities, Blacks were on average over six times more likely to be arrested for marijuana possession 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 ACLU of Maryland finds a similar picture in our state*:
In every county in the Free State, Blacks are disproportionately targeted for enforcement of marijuana laws. The glaring racial disparities are as staggering in the suburbs of Baltimore and Washington D.C. as they are on the Eastern Shore or in Western Maryland. They are as likely to exist in large counties as small, in counties with high median family incomes or low median incomes. They exist regardless of whether Blacks make up a large majority or small minority of a county’s population. And the disparities have only gotten worse over time.
The erosion of civil rights and civil liberties
Whether in Maryland or nationwide, these disparities are both huge wrongs in themselves, if we believe in equal justice under the law — guaranteed by the 14th Amendment — and strong indications that marijuana policy is far less about public health than effectively (and often purposely) about a race war by other means, featuring casualties and prisoners who are overwhelmingly black.
As author and former ACLU executive Michelle Alexander has put it, we’re witnessing “The New Jim Crow“:
Human Rights Watch reported in 2000 that, in seven states, African Americans constitute 80 to 90 percent of all drug offenders sent to prison. In at least fifteen states, blacks are admitted to prison on drug charges at a rate from twenty to fifty-seven times greater than that of white men.
Ms. Alexander’s book is excellent in showing how these arrests and sentences ruin lives, and how punitive drug policies have driven the erosion of all of our constitutional rights. Stop-and-frisk and racial profiling did not originate with Mayor Bloomberg’s NYPD; surveillance abuses did not begin with the NSA or Metro bag searches; erosion of the right to trial did not begin with the NDAA. Rather, all of these developments were foreshadowed more or less explicitly by judicial rulings, legislation, or executive actions connected to the “War on Drugs” — e.g., Operation Pipeline (DEA, 1984: profiling); Anti-Drug Abuse Act (1986; mandatory minimums); California v. Acevedo (1991; warrantless search); Florida v. Bostick (1991; suspicionless search); Ohio v. Robinette (1993; “consent”); Deal v. United States (1993: ‘stacking’ of 924(c) charges enabling the threat of near-life sentences for combined drug/gun violations). The net effect was to uphold and expand an allegedly “tough on crime” agenda advocated via racial “dog-whistle” rhetoric especially by Nixon and Reagan, and ratified by “me too” politicking and policies by Clinton.
Legalizing marijuana in Maryland won’t make these precedents, programs, and policies go away — but it will reduce their application. That may be the first step to rebuilding a justice system built not for incarceration and volume, but for, well, justice. Black, white, or Hispanic; Christian, Jewish, or Muslim; activist or not; marijuana user or not: push back against the war on marijuana — both the biggest and arguably the least justified part of the War on Drugs — and the rights you restore or preserve will be your own.
Ways forward in Maryland
Fortunately, momentum is building in Maryland to do just that. First, the ACLU of Maryland is re-committing to a strong push in the coming legislative session to decriminalize marijuana possession. Reacting to the national ACLU report in June, Maryland’s ACLU legislative director Sara Love said,
“Marijuana decriminalization efforts in the Maryland General Assembly advanced further than ever before this past session. With this momentum and the new report, the ACLU of Maryland will continue advocating for reform of Maryland’s racially biased and aggressive penalization of marijuana possession, which has torn communities apart, not improved public safety, not eradicated use, and has been a colossal waste of money.”
At least as importantly, Maryland gubernatorial candidate Heather Mizeur announced that she will propose marijuana legalization if elected. Her campaign issue pages and well-researched legislative plan lay out some of the same reasons noted above — and points out that between revenues from taxation and savings from reassigned law enforcement priorities, Maryland could benefit hugely from legalizing marijuana:
Adults 21 and over will be allowed to possess up to an ounce of marijuana without violating state law… Smoking of marijuana will not be allowed in public, indoor or out. …It will continue to be illegal to drive under the influence of marijuana… It will continue to be illegal for anyone under the age of 21 to purchase, possess or consume marijuana. [...] As governor, Heather Mizeur will legalize, regulate, and tax marijuana, generating up to $157.5 million in new annual revenue. The revenue will be used to create a dedicated funding stream for her proposed expansion of Maryland’s early childhood education system. [...] The financial cost of criminalizing marijuana is significant. According to a 2009 study, our state wastes as much as $281.7 million per year enforcing overly punitive marijuana prohibition laws.
That’s a turnaround of nearly half a billion dollars — in a state forced in its last budget to cut mental health funding by $7 million and cut contributions to state employees and teachers pension fund by $100 million. But above all:
Legalizing and regulating marijuana will save tens of thousands of people from misguided and unnecessary involvement in our debilitative criminal justice system – 43% of whom would likely end up becoming recidivists entangled in the system time and again.
Like all Americans, we in Maryland have a choice. We can sit idly by and agree with nay-sayers like Doug Gansler, one of Mizeur’s Democratic competitors, whose spokesman claimed there “does not appear to be a groundswell toward full scale legalization” — despite widespread, bipartisan support in the state for just that. We can shrug our shoulders and walk away from the chance to build bigger, better coalitions for our rights and civil liberties. We can walk away from confronting what may well be the single biggest systematic injustice — in terms of unnecessary humiliations, arrests, derailed lives, and occupied jail cells — in Maryland and the country.
Or we can pitch in for marijuana reform in Maryland.
Let’s educate ourselves and others about this issue. Let’s do all we can to support ACLU of Maryland’s marijuana decriminalization legislation this session. And let’s do all we can to support and reward gubernatorial candidate Heather Mizeur for her bold support for marijuana legalization, for her political courage, and for her good sense.
* FBI Uniform Crime Report (UCR) data does not provide separate Hispanic arrest totals; these are likely counted as white in UCR data.
** Note that Montgomery County does not distinguish itself in this regard, either. From the ACLU Maryland report: “Between 2001–2010, Black arrests went up by 45%, even though the Black population increased by less than half that much. By 2010, Blacks made up 18% of Montgomery County’s population, but 46% of all marijuana possession arrests. These statistics likely underestimate race disparities in marijuana possession arrests, as Montgomery County has Maryland’s largest Latino population, which was not accounted for in the data reviewed.”