While 24 states have passed laws to legalize recreational marijuana, federal law continues to prohibit the plant. This disparity between state and federal laws has grave consequences, not just in terms of the criminal legal system but elsewhere, too: Federally subsidized tenants, including Section 8 and public housing tenants, can be evicted or denied admission for possessing, using or dispensing marijuana — while their neighbors down the block who aren’t federally subsidized may enjoy recreational marijuana without such consequences.
The good news is that in January, Sen. Cory Booker (D-New Jersey) and Rep. Eleanor Holmes Norton (D-D.C.) introduced a bill, the Marijuana in Federally Assisted Housing Parity Act, to allow federally subsidized housing tenants in marijuana-legal states to access cannabis without the threat of eviction or denial of admission. The bad news is that this bill was previously introduced in 2019 and didn’t advance, presumably because it lacked support.
Marijuana legalization has been a redress for a history of drug laws that disproportionately criminalized Black and Brown people. Legalizing marijuana statewide only for some to reap its recreational, medicinal and business benefits while upholding a federal ban that can result in the eviction of low-income tenants only reinforces that system of inequity. I would know. I’m a tenants’ rights lawyer who spent the first few years of my career exclusively representing public housing and Section 8 tenants in eviction proceedings. What I’ve seen in my career shows why Congress should pass this bill.
During the war on drugs, subsidized housing tenants were targeted for marijuana-related arrests and evictions. Take New York, for example. A 2007 article by researchers found that “since the mid-1990s and into the 2000s, most [marijuana] arrests have been recorded in higher poverty, minority communities outside the lower Manhattan area and by the [New York Police Department’s] policing of low-income housing projects.”
Incarceration rates were higher too. Between 2008 and 2010, incarceration rates in New York City neighborhoods with public housing developments were 4.6 higher than in neighborhoods without any public housing. In other words, subsidized housing residents, the majority of whom are Black and Brown, were surveilled and arrested more than their wealthier, white neighbors for recreational marijuana use. Overall, “Black people are 3.64 times more likely than white people to be arrested for marijuana possession despite comparable marijuana usage rates,” an American Civil Liberties Union study found.
Due to these racially discriminatory police interactions, subsidized housing residents have a long history of successfully suing police departments — like in NYC for purposely patrolling public housing grounds resulting in unlawful arrests, and in Antioch, California, for the targeted harassment of Section 8 tenants. In one prominent federal lawsuit, police officers even revealed they were pressured to make frequent arrests in order to meet quotas. Those demands created a gross incentive for stop-and-frisk practices near public housing grounds to arrest residents who were often presumed guilty because of being Black or Latino, and poor.
The impact of the marijuana laws goes beyond arrests; subsidized housing tenants have been evicted too. In many cases, an arrest was sufficient for a tenant’s eviction even without a conviction. In 2016, in a widely cited law journal article I co-authored, “Innocent Until Proven Guilty?: Examining the Constitutionality of Public Housing Evictions Based on Criminal Activity,” I analyzed the constitutional implications of evicting tenants over a crime that hadn’t even been proven in court.
Today, seeing that over 81 percent of cannabis industry executives are white, memories flood back to all of the Black and Brown clients I’ve had over the years, whose lives were ripped asunder over marijuana arrests. That’s because they had to fight two different court systems — a criminal case for their freedom and an eviction case to keep their homes. I remember one time a woman, teary-eyed, looked to me for some answers: “I was arrested and a week later got a notice from the housing authority — how did they even know I was arrested?” Her eyes widened with disbelief as I explained that since 1996, the NYPD and the housing authority have had a formal agreement — a Memorandum of Understanding — that anytime someone with a public housing address is arrested, the police must inform the housing authority immediately. In fact, in 2015, the NYC government published a report chastising the housing authority for not using the agreement to evict enough.
Marijuana possession also spurred one of the most consequential Supreme Court cases on public housing eviction policy for decades to come. In Department of Housing and Urban Development v. Rucker, public housing residents sued Oakland Housing Authority for terminating their leases based on “drug-related criminal activity.” Out of the four plaintiffs, two were evicted because their grandsons were found smoking marijuana in the apartment parking lot. The Supreme Court ruled that public housing authorities have the right to evict an entire household based on drug-related criminal activity, even if only one was found with drugs.
This case had a widespread impact. A decade later and miles away in New York, my client’s son had been caught with marijuana. By Rucker’s rule, even though my client didn’t know about it, she faced eviction too. The housing authority gave her a choice: get evicted or save herself by agreeing to never let her son visit again. She agreed. But as years passed by, she missed her son and wanted him to come by for Christmas. Much to their surprise, housing authority officers were there waiting — trained to pop up on birthdays and holidays — and reported the mother for breach of the permanent exclusion agreement. She faced eviction again. This is who I think about as cannabis legalization becomes more popular — the families who endured decades of draconian policies, a cloud of eviction hovering over their heads for years, and strained familial relationships.
Critics may argue that permitting marijuana in federally subsidized housing will negatively impact the quality of life. Shouldn’t residents enjoy the comfort of a smoke-free home especially in housing that is routinely underfunded and in disrepair? Yes, residents can enjoy smoke-free housing. That’s why HUD mandated a smoke-free policy in 2017 that bans tobacco products. While marijuana isn’t mentioned in that ban, Congress members Norton and Booker’s bill allows a carveout to keep those areas marijuana-free.
But the other side of the quality-of-life argument is that some people use marijuana for medicinal purposes. Mary Cease, a disabled veteran, uses medical marijuana to alleviate post-traumatic stress disorder and chronic back pain. Her application to a public housing complex in Pennsylvania was denied because of the federal ban, which led her to sue. Twenty-five percent of federally subsidized tenants have a disability. Tenants like Cease will have a decreased quality of life because the federal ban furthers ableism by not exempting medical marijuana. Recently, President Joe Biden moved to declassify marijuana from Schedule I, which includes heroin, to Schedule III which includes anabolic steroids and ketamine. The biggest impact of this marijuana reform will be for medical marijuana, but it will not legalize cannabis for recreational use.
Congress members Norton and Booker’s bill would rectify a long history of inequality. Several states, such as Ohio, Oregon and New York, have considered workarounds to circumvent the ban but have been unsuccessful because state laws will rarely override a federal ban for federally assisted property. That’s why this bill is necessary.
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