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Even When Marijuana Is Legal, Young People Are Locked Up for It

Children and young adults are still criminalized for marijuana possession in states where it has been legalized.

Children and young adults are still criminalized for marijuana possession in states where it’s been legalized.

As more states legalize recreational cannabis use, a large group is continuing to face marijuana-related criminalization: anyone under 21. Similar to alcohol laws, recreational adult-use cannabis laws permit anyone 21 and over to use cannabis recreationally. In practice, youth prohibition doesn’t prevent young people from using marijuana, but it does increase the policing and criminalization of Black, Brown and/or disabled young people.

For example, Colorado legalized cannabis in 2012, but youth are being summoned en masse to drug court for marijuana-related offenses. According to state data, Colorado reported a total of 1,034 marijuana-related incidents during the 2019-2020 academic year, of which 976 were court summons; 31 of the incidents were arrests while 27 were unknown.

The conclusion of a 2019 JAMA Pediatric study affirms marijuana legalization (for those 21 and over) doesn’t reduce arrests for youth, nor do youth benefit from decriminalization policies when accompanied with legalization. Although marijuana decriminalization has the potential to reduce youth arrests, this research suggests this potential is lost when a state adopts recreational legalization.

“[Cannabis] is being legalized across the nation, and yet we [don’t] just want to make it illegal for children, but create criminal penalties that are going to follow children,” explained Valerie Slater, executive director of RISE for Youth. “It makes zero sense.”

Legalization policies incorporate youth criminalization as a misguided attempt to restrict youth access and discourage youth use. It’s important to note that legalizing adult cannabis use doesn’t increase youth use or access, according to numerous studies. The Drug Policy Alliance notes that youth use has stabilized following legalization measures in Washington State, Colorado and Alaska. Youth prohibition isn’t driven by logic, though; it’s based in existing criminalizing policies originating during Ronald Regan’s era of drug policy.

Reaganite Youth Drug Policies Persist

Drug-free school zones were first created by Nixon in 1970 and later developed in the late 1980s as part of a broader federal anti-drug law. These zones strengthened the marriage between schools and prohibition that fuels the school-to-prison pipeline. Although the size of these zones varies by state, these laws were drafted broadly to enhance existing penalties, much like mandatory minimum sentences. Many states’ drug-free school zone sentencing schemes create two penalties for a single offense; the first being the initial offense (for example, cannabis possession), and the second being the violation of a drug-free school zone law. In highly policed Black and Brown communities, the drug-free school zones often extend far beyond the boundaries of the school, becoming vast in size. For example, in Tennessee, 2017 Reason reporting showed that 27 percent of Nashville and more than 38 percent of Memphis were covered by drug-free school zones. To partially address this, in July 2020, Gov. Bill Lee signed a bill to slash drug-free school zones from 1,000 to 500 feet.

“If you put a radius around a school, an entire city can be covered in [drug-free] school zones,” explained Jason Ortiz, executive director of Students for Sensible Drug Policy. “In a rural community, it might not even get to the parking lot.”

Additionally, drug-free school zones have expanded to places beyond schools themselves, including public housing facilities, public parks, churches and daycare centers, according to the Sentencing Project.

“[Drug-free school zones] stem from a fear of youth getting access to drugs, which they already have access to,” Ortiz explained. “It’s also an escalating charge that can lead to being charged as an adult in most places.”

In the majority of the country, those under 18 can be transferred from juvenile drug court to adult drug court. The Sentencing Project reports that only four states — Connecticut, Kansas, Massachusetts and New Mexico — don’t allow children to be tried as adults for drug offenses.

Punishment for violating drug-free school zones can result in hindered educational opportunities. “Zero tolerance” policies popped up when the Anti-Drug Abuse Act (ADAA) of 1986 was signed by Reagan, explains the School Discipline Support Initiative. (Although the ADAA further specified and developed drug-free school zones, the first drug-free school zone was created under the Comprehensive Drug Abuse, Prevention and Control Act of 1970, passed by Richard Nixon.) These policies come with mandated, predetermined consequences for students. For example, the Atlanta public school system enforces immediate suspension or expulsion of any student violating its zero tolerance drug policy. Suspension and expulsion, which can result from zero tolerance policies, are also connected to higher drop-out rates, reports the American Psychological Association.

Mandatory drug treatment programs often function as yet another method of punishing youth, despite being presented as an alternative to incarceration. Since many, if not all, youth choose a drug treatment program to avoid detention, these centers rarely provide genuine rehabilitation. As Ortiz noted, court-mandated youth can also take space in drug treatment facilities that could otherwise be occupied by youth who are choosing treatment voluntarily. Plus, the cost of court-mandated treatment programs falls on youth and their families to fund.

New Jersey Points Way Toward Reducing Youth Penalties

As an increasing number of states legalize marijuana, the question of youth criminalization has repeatedly come to the fore. For example, when New Jersey recently adopted two cannabis bills — one to decriminalize existing cannabis penalties and the other to create a legal market – Gov. Phil Murphy and the state legislature clashed about the specifics of youth penalties for months. Youth criminalization is a stark racial justice issue in New Jersey, where, according to a 2017 Urban Institute report, Black youth were 29.2 times more likely to be detained than white youth in 2013.

Murphy finally agreed to impose a less harsh discipline system for minors possessing up to six ounces of cannabis. In S3565, which passed unanimously in both the House and the Senate, the first offense involves parental notification of underage possession of cannabis. For the second offense, police are to provide information about community-based services, such as “counseling, tutoring programs, mentoring services, and faith-based or other community initiatives.” If there is a third offense, the police are ordered to make referrals to said services.

The new legislation has been lauded for not relying on incarceration (although it does rely on police to play the role of social workers, a practice discouraged by the growing #DefundthePolice movement).

Laura Cohen, clinical professor of law at Rutgers University and director of the Criminal and Youth Justice Clinic, stressed the importance of not involving courts.

“For the third interaction between a young person and [the] police over the course of a two-year period, the police are supposed to make referrals to community-based services, not necessarily for drug treatment, and there are no penalties for [youth] failing to comply,” she explained. “This legislation … is intended to approach the question of cannabis use by young people as a public health issue and not as a criminal legal system issue.”

Additionally, the law doesn’t call for law enforcement intervention when possession occurs in a school setting. Instead, the school administration is supposed to handle disciplinary action.

“What I anticipate will happen now is that if students come to school with cannabis, alcohol or tobacco, that it will be dealt with through the school’s disciplinary system and not referred to law enforcement,” Cohen said.

Although law enforcement still has power to decide what type of referral a child receives after a third offense, and the system doesn’t apply to those with drug distribution charges (only possession charges), New Jersey’s new system is still considered one of the most progressive models of youth cannabis decriminalization to date.

Both Slater and Cohen praised New Jersey’s recent legislation as a model for other states. However, advocates note that the racist practices of the youth drug war cannot be undone through a single decimalization bill; instead, a concerted and ongoing effort will be needed to confront the drug war’s impact on youth.

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