Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Saturday, August 12, 2017

"Legalizing Pot Is a Bad Way to Promote Racial Equality"

The title of this post is the headline of this recent Wall Street Journal commentary authored by Jason Riley in response to Senator Cory Booker's new federal marijuana reform bill. Here are excerpts:

Cory Booker, New Jersey’s ambitious junior senator, has gone to pot. Last week the Democrat introduced a bill that would legalize marijuana at the federal level while withholding funds from states that don’t legalize it and that disproportionately incarcerate “low-income individuals and people of color for marijuana-related offenses.”

The legislation may help Mr. Booker burnish his image with progressives if he runs for president in 2020, but it almost certainly is going nowhere. Republicans control Congress, and Attorney General Jeff Sessions is a drug warrior, which is one reason President Trump put him in charge of the Justice Department.  Nevertheless, Mr. Booker’s arguments for drug legalization are worth considering because they represent a large and growing consensus. Support for marijuana legalization has nearly doubled to 60% since 2000, according to a 2016 Gallup survey. Even 42% of Republicans support legalization.

In his Facebook posts promoting the bill, Mr. Booker cites some of the more common rationales put forward by proponents of pot legalization, including racial disparities in drug arrests and prisons teeming with “nonviolent” offenders that drain state budgets. “In the United States today, black people are almost four times more likely than their white counterparts to be arrested for marijuana use or possession,” writes the senator. “This is the right thing to do for public safety, and will help reduce our overflowing prison population.”

Mr. Booker believes drug legalization would address these racial disparities, but don’t bet on it. Violent offenses, not drug offenses, drive incarceration rates, and blacks commit violent crimes at seven to 10 times the rate whites do. Data from 2015, the most recent available, show that about 53% of people in state prisons (which house nearly 90% of the nation’s inmates) were imprisoned for violent crimes, 19% for property crimes and just 16% for drug crimes. Given that blacks are also overrepresented among those arrested for property and other nonviolent offenses, merely altering U.S. drug laws would effect little change in the racial makeup of people behind bars.

Much is made of studies that show blacks and whites use drugs at similar rates.  But a large majority of drug arrests are for trafficking, not possession, so we shouldn’t expect usage rates and arrest rates to be identical.  Anyway, marijuana offenders of any race occupy relatively few jail and prison cells, and the ones who do tend to be dealers. “As a percentage of our nation’s incarcerated population, those possessing small amounts of marijuana barely register,” writes James Forman, a former District of Columbia public defender, in his new book, “Locking Up Our Own.”  He continues: “For every ten thousand people behind bars in America, only six are there because of marijuana possession.”...

But if the goal is more racial parity in our penal system, drug legalization seems like an odd place to start.  Citizens of Washington state and Colorado voted to make recreational pot legal in 2012.  A 2016 study from the Center on Criminal and Juvenile Justice found that while pot arrests overall were down in Washington, large racial discrepancies remained.  In fact, blacks were still twice as likely as whites to be arrested for marijuana-related offenses.  And Jeff Hunt of Colorado Christian University reports that the illegal market for weed in the Rocky Mountain State is still thriving and seems to have exacerbated racial inequities.  “According to the Colorado Department of Public Safety, arrests in Colorado of black and Latino youth for [underage] marijuana possession have increased 58% and 29% respectively after legalization,” Mr. Hunt wrote in USA Today recently.  “This means that Black and Latino youth are being arrested more for marijuana possession after it became legal.”

Astute observers of US criminal justice systems might well predict that we could see worsening racial disparities if and when there are fewer arrests and prosecutions for marijuana activity. Data on incarceration in US states generally show that the states with smaller prison populations actually have greater disparities within these smaller numbers. And it does create an interesting and important normative question for those especially concerned with racial equality whether they should celebrate a big decrease in marijuana arrests and prosecutions if only certain favored groups get a disproportionate benefit from such a change.

http://lawprofessors.typepad.com/marijuana_law/2017/08/legalizing-pot-is-a-bad-way-to-promote-racial-equality.html

Criminal justice developments and reforms, Race, Gender and Class Issues | Permalink

Comments

Post a comment