The Facts About Marijuana Fairness and Decriminalization

Decriminalization refers to the elimination of criminal penalties for the use, possession or sale of drugs. There are many legitimate reasons to support the decriminalization of marijuana, but the primary motivator for many is to right the injustices caused by decades of harsh crackdown on marijuana-related crimes, especially against people of color.

Why it’s time to end the federal criminalization of marijuana

For years, marijuana has been called a “gateway drug”. This is only true to the extent that marijuana has become a gateway to the criminal justice system for far too many people of color. For the Last 20 years, the United States has on average more than 600,000 marijuana arrests each year, blacks being close to four times more likely than their white counterparts to be arrested, even though both use marijuana at similar rates. There are now millions of people convicted of possession of a decriminalized substance in 33 states and the District of Columbia – and 7 in 10 US voters believe it should be legal.

Especially in the era of COVID-19, decriminalization of marijuana could have a significant impact on long-term economic recovery efforts and ensure that black people and communities of color are no longer disproportionately affected by the war against Drugs. While decriminalization may help reduce the harms of drug control, it will not completely eliminate the current and future effects of punitive measures that have disproportionately affected marginalized groups. It is therefore essential not only to decriminalize marijuana, but to do so in a fair manner.

How to Decriminalize Marijuana Through Fair Means

A fair approach to the decriminalization of marijuana must ensure an end to the harm inflicted on communities most vulnerable to the war on drugs. The following policy measures may offer the fairest way forward.

  • Withdrawal of marijuana under the Controlled Substances Act: The Drug Enforcement Administration classifies drugs, substances, and other chemicals in a five-category listing system. Cannabis, along with other substances such as heroin and LSD, is listed under the Controlled Substances Act as a Schedule I substance – the most restrictive class of drugs, considered to have the most great potential for abuse without medicinal value. However, since marijuana has some medicinal value and there is no definitive evidence to suggest high rates of abuse among cannabis users, it should be removed as a Schedule I substance. Reprogramming reclassify marijuana in a less restrictive schedule category; but even if reclassified, cannabis could still be banned federally. For true fairness, federal lawmakers must mess up marijuana removing it completely from any class of listed substance – ending the federal ban and allowing states to oversee their own marijuana policies.
  • Retroactive automatic expungement of previous marijuana convictions: Roughly 70 to 100 million people live in the United States with criminal records, which can have lasting effects and hamper opportunities for employment, housing and education. This is especially true for blacks, who are already disadvantaged by the racial wealth gap. Automatic Record Clearing measures are a streamlined process for removing arrests or convictions from a criminal record without the onerous fees and legal fees required for expungement in other jurisdictions. Clearing a record not only provides people of color with the opportunity to participate in the marijuana industry, but can also remove barriers to employment, education, and housing opportunities.
  • Social equity programs: Even as states pass laws to decriminalize marijuana, communities of color left behind in the emerging and highly profitable cannabis industry, with revenues expected to climb to $ 50 billion by 2026. Social equity programs, however, can help correct the damage done to these communities after years of patchwork enforcement action on marijuana. Specifically, by providing assistance for loans, grants, business training and other resources, these equity programs can help people from disproportionately affected communities enter the legal marijuana industry and to support businesses.
  • Reinvestment of marijuana revenues: The Center for American Progress has called for the use of marijuana-related revenues to fund public sector job creation for people in communities most affected by tough marijuana law enforcement. Billions of dollars have been made in the cannabis industry for the same activities that have caused suffering to millions of people of color in the criminal justice system. As states continue to enjoy these gains, those involved in justice are forced to face the collateral consequences of their convictions. Reinvestment programs can help reverse these harms by providing the opportunity to meet the needs of communities most affected by marijuana law enforcement and by implementing economic opportunities for future economic success.

What decriminalization looks like at national and local levels

Despite the federal ban, several states have already taken steps to decriminalize marijuana in their jurisdictions, starting with legalization. Legalization allows full use and possession of marijuana in accordance with regulatory guidelines without the risk of penalty, while also allowing people to participate in an openly regulated cannabis industry, directly overseen by states. Currently, 17 states and territories in the United States have adopted legalization measures for marijuana for adult use. Other states and communities have adopted decriminalization measures that treat the use and possession of marijuana as certain traffic violations. These measures do not legalize marijuana, but rather consider it a minor offense with less severe punitive consequences.

Some states are already working to develop social equity programs and write-off measures to address the damage caused by the war on drugs. In June 2019, Illinois became the 11th state to legalize recreational marijuana. State law takes strong steps to ensure social fairness in this initial legislation, including the creation of an exclusive fund for low-interest loans and grants for qualified applicants in matters of employment. ‘social equity, social equity licenses reserved for people from disproportionately affected communities, and a new process for automated radiation for around 700,000 eligible cases. Meanwhile, in Massachusetts, state cannabis law provided for 123 licenses for people certified as candidates for economic empowerment under the social equity program, as part of an effort to ensure the inclusiveness of the most affected communities. In addition to a 50% reduction in license fees, applicants receive free training in basic entrepreneurial, cultural and managerial skills.

“Racially motivated marijuana law enforcement has had a disproportionate impact on communities of color. It is high time to right this problem across the country and to work to view marijuana use as a matter of personal choice and public health, not criminal behavior.

Representative Jerrold Nadler (D-NY), Chairman of the House Judiciary Committee

Local governments have also developed their own equity programs. Oakland launched one of the first and the most ambitious equity programs the country has seen this, requiring that at least half of all permits be granted to equity applicants and encouraging applicants from general partners to “incubate” and mentor applicants with a minimum of three years of free rent on at least 1000 square feet of space for cannabis businesses. Other cities, like Los Angeles, San Francisco, San Diego and Sacramento, have similar programs. In addition to its own fairness program, San Francisco developed technology last year to clear more than 8,000 qualifying marijuana convictions. In one declaration Announcing the new automatic record-release process, then-San Francisco District Attorney George Gascón noted that the new process “helps remedy the harm caused by the failed drug war, felt most strongly by communities of color ”.

The MORE law

the Marijuana Opportunities Reinvestment and Write-off Act (MORE) is a comprehensive federal marijuana measure that would not only legalize marijuana, but also clear marijuana records, secure a right to public benefits regardless of a marijuana conviction, and use tax revenues to support war-affected communities against drugs. The measure was passed by the House Judiciary Committee on November 20, 2019 and could receive a full vote this year. If enacted, this comprehensive measure would 1) legalize marijuana at the federal level by removing cannabis from the Controlled Substances Act; 2) require courts to erase previous marijuana-related convictions from an individual’s criminal record and those who are still in the process of completing their sentences for a marijuana-related offense; and 3) use tax revenues from marijuana companies to fund employment programs, reintegration services, and drug treatment programs for communities most affected by the war on drugs.

The MORE law will ensure the legalization of marijuana through fair measures that end racially disproportionate outcomes and the racial wealth gap.

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Akua Amaning is associate director of criminal justice reform at the Center for American Progress.


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About Robert Valdivia

Robert Valdivia

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