Gateway Drug:
An Analysis of Racial Discrimination in the Criminalization of Marijuana
Megan O’Connor
April 13, 2022
O’Connor – An Analysis of Racial Discrimination in the Criminalization of Marijuana
Executive Summary
This policy brief examines the racial bias in marijuana law enforcement. Black people are
3.64 times more likely to be arrested for marijuana possession than white people are, despite
using marijuana at similar rates (ACLU, 2020). Furthermore, as popular culture has begun to
embrace marijuana more and even as states begin legalization, there is still a large race gap. For
example, in the legal marijuana industry, 81% of marijuana business owners are white (Connely,
2021). Even states that have legalized marijuana still report a race gap in arrests, showing that
black people are still unfairly targeted in the war on drugs.
The overcriminalization of marijuana has caused almost immeasurable harm to the black
community. Insider has estimated that a felony marijuana possession charge can lead to almost
$300,000 lost in lifetime earnings. Not only this, but an estimated $3.6 billion is spent annually
just to enforce possession laws (Hickey & McLaughlin, 2019). This brief discusses the impact
that federal legalization of marijuana, state-supported expungement and resentencing, and
extensive social equity programs have on eliminating the race gap in marijuana criminalization.
This brief recommends the creation of social equity programs as a means to restore communities
most harmed by the war on drugs.
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O’Connor – An Analysis of Racial Discrimination in the Criminalization of Marijuana
Introduction
In 1971, Richard Nixon declared a war on drugs. Thus began an era of drug
criminalization characterized by harsh sentences and increased incarceration. The war on drugs
directly targeted people of color, with Nixon aide John Ehrlichman saying “by getting the public
to associate the hippies with marijuana and blacks with heroin, and then criminalizing both
heavily, we could disrupt those communities” (Drug Policy Alliance). In more recent years,
marijuana legalization efforts have gained both traction and public support. 18 states have
legalized recreational marijuana usage (Connely, 2021), yet marijuana remains federally illegal,
classified as a Schedule I drug with heroin and LSD (21 CFR 1308.11).
Furthermore, there is an abundance of evidence showing how the enforcement of
marijuana laws unfairly targets African Americans. In some states, dispensary owners profit
from the sale of marijuana while others struggle to obtain employment and housing due to past
marijuana convictions. In 2017, 81% of dispensary owners were white (Connely, 2021). At the
same time, the ACLU found that black people are 3.64 times more likely to be arrested for
marijuana charges (ACLU 2020). Even states that have legalized marijuana still report racial
disparities in drug arrests. The criminalization of marijuana doesn’t just harm the individual, but
an estimated $3.6 billion is spent by police to enforce possession laws (Hickey & McLaughlin,
2019).
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O’Connor – An Analysis of Racial Discrimination in the Criminalization of Marijuana
Policy Problem
In the earliest American colonies, hemp was widely grown and used to make ropes and
textiles. At one point, hemp was even used as legal tender. As time progressed, marijuana began
to make its way into pharmaceutical products. It wasn’t until an influx of Mexican immigrants
introduced Americans to the recreational properties of marijuana that Americans turned against
the plant they once loved. As people started associating marijuana with the Mexican immigrants
following the Mexican Revolution, America’s “war on drugs” began. For the next century,
Americans began associating marijuana with crime and delinquency, and thus the criminalization
of marijuana began (PBS). Since the very beginning, marijuana criminalization was rooted in
racism. As times have changed and society has progressed, marijuana criminalization still
disproportionately harms people of color. However, the view of marijuana in society has
changed greatly.
From the hippies of the 60’s to Snoop Dogg smoking a blunt at the super bowl, marijuana
has maintained a place in popular culture. As society has loosened and more information has
become available about the benefits of marijuana usage, both medicinally and recreationally, the
push for marijuana legalization has been steadily gaining traction. As of 2022, 18 states have
legalized recreational marijuana use (Connely, 2021). Marijuana is a growing business, with
some dispensaries selling high-end drug paraphernalia for hundreds of dollars. Yet despite all
this progress, there are still individuals sitting in prison for marijuana-based offenses. While the
cash is flowing and business is booming, there remains an alarming disparity in those arrested
and charged with marijuana-based offenses. Historically, the criminalization of marijuana use
has been used to target African Americans, an effect that is harming communities to this day.
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O’Connor – An Analysis of Racial Discrimination in the Criminalization of Marijuana
In 2018, the ACLU estimated that 567 out of 100,000 black people were arrested on
marijuana possession charges. This is compared to only 156 out of 100,000 white people arrested
on possession charges (ACLU, 2020). This same report found that almost half of all drug arrests
are marijuana possession charges (ACLU 2020). Even states that have legalized marijuana use
still present a racial disparity in enforcement. For example, in 2018 Maine had an arrest rate ratio
of 4.0 while Nevada had an arrest rate ratio of 3.0 (ACLU, 2020). It is important that marijuana
policy is viewed through the lens of racial injustice.
The criminalization of marijuana also comes with a hefty price tag, with estimates stating
“between $600,000,000 and $3,000,000,000” is spent on marijuana arrests. Furthermore, each
felony conviction costs $73,170 with police spending $3.6 billion annually to enforce possession
laws. For an individual facing a misdemeanor charge, Insider reports that attorney fees cost
$1,000 to $3,000. Additionally, an individual would have to spend $1,000 to $2,000 to complete
treatment programs to contest the charge. For felony charges, “the projected total hit per
defendant is between $15,000 and $20,000.” This doesn’t even take into account the financial
losses that come as a result of having a felony charge. Insider estimates that a felony possession
charge causes an individual to lose approximately “$306,000 in lifetime earnings” (Hickey &
McLaughlin, 2019).
The American Civil Liberties Union concluded that black people are 3.64 times more
likely to get arrested for marijuana possession than white people, despite similar usage rates.
After a criminal conviction, individuals must reckon with federal, state, and local restrictions
placed on the formerly incarcerated. Even in states that have decriminalized recreational
marijuana usage, African Americans are still being unfairly targeted for marijuana-based
offenses. The ACLU found that in 2018 Maine had an arrest rate ratio of 4.0 and Nevada had an
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O’Connor – An Analysis of Racial Discrimination in the Criminalization of Marijuana
arrest rate ratio of 3.0, even with marijuana being legalized in both states (ACLU, 2020). It is
vital to understand the role that race plays in marijuana criminalization, and no legalization effort
is complete without addressing this issue. When making adjustments to drug enforcement policy,
it is important to keep the idea of equity at the center of discussions. Equality is not possible
without equity. As seen in states where marijuana has been legalized, some racial barriers still
exist hindering progress. These discrepancies must be addressed throughout the process of
legalization and decriminalization to ensure that the gap is not widened.
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O’Connor – An Analysis of Racial Discrimination in the Criminalization of Marijuana
Policy Options
Perhaps the most obvious solution to the over-criminalization of marijuana would be
widespread federal legalization. The crux of legalization is regulation. While both state and
federal governments take a criminal approach to marijuana, other substances such as alcohol and
tobacco fall under a regulatory approach. The fight for legalization has been ongoing for
decades, but in recent years public opinion has shifted in favor of legalization. In a report from
the Pew Research center, opposition to marijuana legalization has fallen from 52% in 2010 to
just 32% in 2019 (Daniller, 2020).
In 2021, Senators Cory Booker, Ron Wyden, and Chuck Schumer introduced the
Cannabis Administration and Opportunity act (Booker 2021). While there have been other bills
proposing the legalization of marijuana, the overwhelming shift in public opinion in recent years
bodes well for the future of this legislation. While the bill advocates for legalization, it also
addresses the current racial disparities in law enforcement and incarceration. The legislation also
provides a roadmap for federal regulation, proposing the removal of marijuana from the
Controlled Substances Act and the Attorney General’s list of controlled substances. (Booker,
2021, p. 6) In order to set regulatory requirements, the bill also pushes to re-define cannabis
under the Federal Food, Drug, and Cosmetic act. This action would also transition regulatory
jurisdiction from the Drug Enforcement Agency (DEA) to the Food and Drug Administration
(FDA). As for federal vs. state regulation, the bill notes that states that have yet to legalize
marijuana may still enforce prohibition. While this may be problematic in solving racial
inequities in criminalization, it is still a start. The bill also recognizes that as a product of federal
legalization, states may not interfere with interstate commerce and the transportation of cannabis
(Booker, 2021, p. 7). The goal of federal legalization would be to regulate marijuana the same
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O’Connor – An Analysis of Racial Discrimination in the Criminalization of Marijuana
way alcohol and tobacco are currently regulated. For example, states are still allowed to set their
own regulatory policies but interstate regulation still falls to federal entities (Marijuana Policy
Project, 2022). The bill is expected to be formally introduced in April, with some concerns about
gaining the necessary Republican support (Adams, 2022).
Any talks of legalization or de-criminalization must include guidance regarding those
currently incarcerated for marijuana-based offenses. While states may legalize marijuana, that
does not undo the extensive damage of criminalization. In any case, a criminal charge can be
highly detrimental, impacting an individual’s future. To ensure equity in marijuana
decriminalization, there cannot be anyone sitting in jail for a marijuana offense while others are
allowed to profit off of the legal marijuana industry. To avoid this issue, states that legalize
marijuana must include a plan to expunge the records and/or resentence any current offenders for
marijuana offenses that are now invalid as a result of legalization. Furthermore, the process of
expungement and resentencing must be the state’s burden, not the individuals.
The process of expungement comes with fees and certain obstacles that may result in
further disparity if not taken on by the state (Trela, 2021). A criminal conviction can prevent an
individual from finding employment, housing, education, and more (Lake, 2021) Furthermore, in
order for an individual to file to have their criminal charge overturned or expunged, there are a
number of obstacles, “such as attorney and other fees, transportation, child care, and immigration
status” (Lake, 2021). The issue with legalization is that while some people profit from the sale of
legal marijuana, others are stuck still suffering the consequences of a marijuana possession
charge, such as incarceration or inability to get a job or housing (Washington, 2020). As it
stands, some states provide automatic expungement, while in some states individuals must seek
out expungement either on their own or with the help of a lawyer (NORML, 2021).
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O’Connor – An Analysis of Racial Discrimination in the Criminalization of Marijuana
Given that African-Americans are unfairly and disproportionately targeted in current drug
enforcement policies, combined with a lack of generational wealth, forcing individuals to seek
out their expungement adds another layer of racism within the legalization process. Legalization
without mass automated expungement clearly serves to detriment the African American
community through mass incarceration. However, should states take up the burden of
expungement, it would be a great stride in the direction of progress.
While expungement and legalization are both vital to establishing equity in drug
enforcement policies, ultimately an all-inclusive approach is necessary. Such an approach would
include creating a plan to uplift and support disadvantaged groups and those who have been
unfairly targeted by criminalization. As states have turned toward legalization, many states have
created social equity programs as a means to uplift those who have been unfairly targeted in the
war on drugs. As of 2017, white people made up 81% of marijuana business owners (Connely,
2021). Massachusetts legalized marijuana and in conjuncture created a Social Equity Program as
a means to close the racial gap in the legalized marijuana industry (Paleologopoulos, 2021).
As discussed before, it is vital for states to address discrimination during the legalization
process, as to ensure that the already existing disparities do not deepen. This program
specifically targets those who have suffered from marijuana criminalization. This includes black
and indigenous people of color, those with past drug offenses, and individuals from certain
disadvantaged areas. The program actively works to close the gaps between disadvantaged
individuals and white individuals, as to ensure that these groups are able to reap the same
benefits as everyone else. The program also introduced a collaboration with law students giving
pro-bono legal advice to assist participants (Paleologopoulos, 2021). This collaboration works to
help close the privilege gap, assisting individuals with expungement. As mentioned previously,
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O’Connor – An Analysis of Racial Discrimination in the Criminalization of Marijuana
the expungement process is vital to helping people get back on their feet, and this program
actively works to eliminate any unfair barriers.
So far, the program has gotten along quite well, boasting over 500 members (CCC, 2021)
By following Massachusetts’s example and implementing social programs directed towards
equality, federal legalization would be more efficient in closing the gap in discrimination.
Additionally, the program intends to expand into creating a social media network in order to
connect participants to mentors (Paleologopoulos, 2021). By acknowledging that certain groups
have been unfairly disadvantaged in drug enforcement and actively working to tear down these
barriers and uplift participants, this program provides a wonderful roadmap for federal and state
legalization in the future.
Illinois is also home to an extensive social equity program. The program also includes a
business development fund, dedicated to uplifting and supporting businesses owned and operated
by those disproportionally impacted by the war on drugs (Galai, 2019). These social equity
programs are still very new, so there isn’t much information regarding their success. As with any
government program, there are concerns about efficacy and resources. For example, some social
equity programs face issues with delayed funding. However, these programs are still a huge step
in the right direction. By focusing on disadvantaged groups, these programs not only address the
racial disparities in marijuana criminalization but work to close the gap and repair community
divisions. Additionally, the program’s focus on increasing diversity in business ownership
actively works to increase generational wealth, which is vital for social mobility.
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O’Connor – An Analysis of Racial Discrimination in the Criminalization of Marijuana
Recommendations and Conclusion
As more and more Americans turn to support the legalization of marijuana, it is vital to
keep in mind the history and impacts that marijuana criminalization has had on American
society. Black and white Americans have historically had similar levels of marijuana use.
However, black people are 3.64 times more likely to be arrested for marijuana possession
(ACLU, 2020). A possession charge impacts an individual’s ability to find work and housing,
not to mention the costs associated with fighting a charge. Attorney fees, transportation, and
treatment programs all come out of pocket. Marijuana criminalization also burdens the
government and taxpayers. It costs around $30,000 to $35,000 to house an inmate in prison. An
estimated $600,000,000 to $3,000,000,000 is spent arresting casual marijuana users, not even big
dealers (Hickey & McLaughlin, 2019). Not only does the criminalization of marijuana harm the
African American community, but the legalized marijuana industry is white dominated
(Connely, 2021). White people are profiting, meanwhile, black people are still unable to reap the
rewards of legalization.
Marijuana criminalization is a multi-faceted issue that requires an all-inclusive solution.
Cannabis Social Equity programs are crucial, as they work to uplift groups unfairly targeted in
the war on drugs. These programs seek to address inequality while also working to decriminalize
marijuana and uplift oppressed groups. The benefit to these programs is their ability to address
multiple factors that may cause disparities. These programs seek to undo the damage from the
war on drugs by promoting diversity in the legal marijuana business, as well as helping overturn
convictions and assisting in legal advice. Additionally, these programs provide oversight and
funding to ensure equality in action.
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