Criminal Justice, the War on Drugs, and the Pursuit of Civil Liberty

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Born and raised in Cook County, Illinois, the friends I had and the life I enjoyed would earn me the label of long-haired, jean jacket wearing Deadhead, by some. Being lumped into a stereotype often has disadvantages, and I was an indignant witness to many atrocious casualties of the failed War on Drugs, specifically regarding marijuana. The shakedown always feels imminent, even today.

By Michael Bachara, Hemp News

In the United States, marijuana arrests, prosecutions, and convictions have wrought havoc on both individuals and communities, causing direct harm and resulting in dire collateral consequences including affecting eligibility for public housing and student financial aid, employment opportunities, child custody determinations, and immigration status.

Marijuana convictions can also subject people to more severe charges and sentences if they should ever be arrested for or convicted of another crime. In addition, the targeted enforcement of marijuana laws disproportionately against people of color, and the unsettling, humiliating experience such enforcement entails, creates community mistrust of the police, reduces police-community cooperation, and compromises public safety.

Just this week, writer Dan Baum published a story for the April 2016 issue of Harper’s. Former Nixon domestic policy chief John Ehrlichman told Baum that “the Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people.” This isn’t surprising considering how “The War on Drugs” was soon to come.

In 1970, The National Commission on Marijuana and Drug Abuse (also known as 'The Shafer Commission') was created by the Controlled Substances Act to study marijuana abuse in the United States. While the Controlled Substances Act was being drafted in a House committee in 1970, Assistant Secretary of Health Roger O. Egeberg had recommended that marijuana temporarily be placed in Schedule I, the most restrictive category of drugs, pending the Commission's report.

The Shafer Commission launched fifty research projects, polled the public and members of the criminal justice community, and took thousands of pages of testimony. Their work is still the most comprehensive review of marijuana ever conducted by the federal government.

The recommendation of the Shafer Commission was to decriminalize possession or non-profit transfer of marijuana. Decriminalization meant there would be no punishment -- criminal or civil -- under state or federal law.

The report declared: "Looking only at the effects on the individual, there is little proven danger of physical or psychological harm from the experimental or intermittent use of the natural preparations of cannabis. The criminal law is too harsh a tool to apply to personal possession even in the effort to discourage use. It implies an overwhelming indictment of the behavior which we believe is not appropriate. The actual and potential harm of use of the drug is not great enough to justify intrusion by the criminal law into private behavior, a step which our society takes only 'with the greatest reluctance.”

The Nixon administration did not implement the recommendations. Despite the (Nixon appointed) Shafer Commission's findings, the House subcommittees' report ultimately concluded just the opposite: “...five years of research has provided strong evidence that, if corroborated, would suggest that marijuana in various forms is far more hazardous than originally suspected.“

And so began the United States longest and most unsuccessful war, The War on Drugs, and the building of the United States for-profit prison industrial complex.

The marijuana possession arrest data presented in the 2013 ACLU report 'The War on Marijuana in Black and White' was obtained largely from the FBI/UCR Program and was to examine marijuana possession arrest rates by race for all 50 states (and the District of Columbia) and their respective counties from 2001 to 2010. This program annually collects data from state and local law enforcement agencies.

The two primary sources used in the report are:

Uniform Crime Reporting Data [United States]: Arrests by Age, Sex, and Race [Alternative Title: ASR], 2001-2010

Uniform Crime Reporting Data [United States]: County-Level Detailed Arrest and Offense Data, 1995-2010

Findings stated that between 2001 and 2010, there were over 8 million marijuana arrests in the United States, 88% of which were for possession. Marijuana arrests increased between 2001 and 2010 and accounted for over half (52%) of all drug arrests in the United States. Marijuana arrests solely for possession also account for nearly half (46%) of all drug arrests. Statistics show that in 2010 there was one marijuana arrest every 37 seconds and states spent over $3.6 billion enforcing marijuana possession laws.

Since 1999, 87.5% of all marijuana arrests have been for possession, while only 12.5% have been for sale or manufacture. See Figure 4.

The report also found, on average, a black person is 3.73 times more likely to be arrested for marijuana possession than a white person (averaged across all 50 states), even though black and white people use marijuana at similar rates. Such racial disparities in marijuana possession arrests exist in all regions of the country, in counties large and small, urban and rural, wealthy and poor, and with large and small black populations. Indeed, in over 96% of counties with more than 30,000 people in which at least 2% of the residents are black, black people are arrested at higher rates than white people for marijuana possession.

In Illinois, black people are 7.6 times more likely that white people to be arrested for possession of marijuana, over twice the national average.

This ACLU report concludes that the War on Marijuana, like the larger War on Drugs of which it is a part, is a failure. It has needlessly ensnared hundreds of thousands of people in the criminal justice system, had a staggeringly disproportionate impact on African-Americans, and comes at a tremendous human and financial cost. The price paid by those arrested and convicted of marijuana possession can be significant and linger for years, if not a lifetime.

Teenagers and young adults bear the brunt of the marijuana possession arrest policies in this country; 77% of marijuana arrests in 2010 were of people 29 or younger, 62% were of people younger than 25, and more than one-third were of teenagers and preteens. See Figure 5 .

The War on marijuana has been a fiscal fiasco. The taxpayers’ dollars that law enforcement agencies waste enforcing marijuana possession laws could be better spent on addressing and solving serious crimes and working collaboratively with communities to build trust and increase public health and safety.

There is no reason that those who want to utilize cannabis should face discrimination and penalty.

Despite the fact that aggressive enforcement of marijuana laws has been an increasing priority of police departments across the country, and that states have spent billions of dollars on such enforcement, it has failed to diminish marijuana’s use or availability.

Individual states and the federal government should eliminate the financial incentives and rewards that enable and encourage law enforcement to make large numbers of arrests, including for low-level offenses such as marijuana possession.

In sum, it is time to end marijuana possession arrests across the country. It’s time to remove marijuana from the Controlled Substances Act.