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Commentary: Will marijuana legalization leave Black people behind?

Photo by Carol Yepes/Getty Images.

By Warren A. Brown and J. Wyndal Gordon.

The writers are defense attorneys based in Baltimore.

When Maryland voters overwhelmingly chose to legalize recreational marijuana last November, we hoped this might help put an end to the five decades-long so-declared “War on Drugs.” Any breathing person now knows the war was on poor, primarily Black people. We know this exceptionally well having spent the bulk of our legal careers in and out of crowded courts, jails, and swelling prisons. More Black males could be found under some arm of the criminal justice system than could be found in any other institution, university, or corporation in this State. The legal and societal justification for landing them there — the use and sale of illegal drugs. In far too many cases, the product of choice was marijuana, otherwise socially acceptably known as cannabis.

A plethora of reliable studies have informed, for decades, that Black and white people use marijuana at the same rates, but Blacks are disproportionately arrested for it. Since Maryland decriminalized small amounts for possession in 2014, Black people continue to be arrested more often for possession with intent to distribute. From 2015 to 2017, 96% of arrestees for marijuana, in Baltimore, were Black. That is an overwhelmingly large number when considering that City is only 62% Black.

Having watched the debate on cannabis reform (Senate Bill 516) on the Senate floor, it appears that Maryland lawmakers once again have misplaced priorities. The legislation prioritizes how the state will regulate and tax an industry that restricts licenses to its elite and millionaires thereby enabling them to legally become high-volume drug kingpins. However, the legislation for some does not end criminalization for others. Individuals that continue to distribute so-called ‘illicit’ marijuana sold outside of government-taxed state monopolies are conspicuously omitted from the state’s brand new industry. Under the proposed bill, the 1% get richer and Black people will continue to go to jail for the same activity.

Sen. Jill P. Carter (D-Baltimore City) offered an amendment to fix this, but it was rejected by the Senate. This begs the question, who is legalization for? Solely, the rich, elite, and connected? I’m sure some of our legislators would not agree.

The amendment would give individuals who may have sold marijuana illegally an opportunity to shift from illegal sales to legally finding a niche in which to participate in the cannabis industry. If Maryland is to create even a modicum of racial equity and economic equality, it must create a pathway to legitimacy for those that fall into generational cycles where the marijuana trade was one of the very few options that provided a means to survive.

Three smart things Maryland should do now:

  1. Place a moratorium on marijuana arrests and grant all would-be arrestees an opportunity to get cannabis industry education and go legit.
  2. Divert this population away from the criminal system and into the legal cannabis industry.
  3. Immediately ban law enforcement stops and searches based on the odor of marijuana.

One cannot tell by the mere odor of cannabis whether an amount believed to be present crosses over the legal possession threshold into criminal activity. Moreover, being proactive in diverting folks from the black market to the green market is truly the only way Maryland can begin to reverse harm to Black people because of the misguided war on drugs. This would not only increase both the tax base and revenues for the State of Maryland but also help to quell the underground markets and improve public safety. Violence and illegal drug enterprises are inextricably intertwined.  Without this kind of diversion, nothing will change, and Maryland will, once again, leave Black people behind.


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Commentary: Will marijuana legalization leave Black people behind?