The Case for Marijuana Reparations

Who's winning, who's losing, and why.
July 28 2014 6:49 PM

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.”

Jamelle Bouie Jamelle Bouie

Jamelle Bouie is a Slate staff writer covering politics, policy, and race.

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.

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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.

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