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Marijuana Legislation Passed by House Lacks Racial Justice Provisions

Allowing legal cannabis businesses to access banking services won’t undo the drug war’s racist legacy.

Eddie Irby weighs the marijuana at Virgil Grant's dispensary in Los Angeles, California, on February 8, 2018. Allowing legal cannabis businesses to access banking services won’t undo the drug war’s racist legacy.

Policymakers are under pressure from different camps as marijuana prohibition continues to slowly crumble across the country. On one side are civil rights and some drug policy reform groups, which center racial justice in their campaign for reform because communities of color have been targeted by racially biased enforcement of punitive marijuana laws for over 80 years. However, racial justice-oriented groups aren’t the only ones pushing to change marijuana laws. There is also the booming, multibillion-dollar legal cannabis industry, which has become a powerful lobbying force in state legislatures and Congress as more states legalize medical and recreational marijuana.

Last week, the industry took priority in Congress as the House passed its first landmark marijuana reform bill since Democrats took the majority last year. Lawmakers advanced legislation that would allow banks and other financial institutions to do business with cannabis companies without running afoul of federal law, which considers any kind of marijuana enterprise to be criminal — even those licensed and regulated by states in which the drug is legal. This has made it difficult if not impossible for legal marijuana businesses to open bank accounts and obtain loans, forcing many to do business is cash.

With nearly every Democrat and dozens of Republicans voting in favor of the bill, some legalization advocates called the vote a “historic” legitimation of retail cannabis.

“For the first time ever, a supermajority of the House voted affirmatively to recognize that the legalization and regulation of marijuana is a superior public policy to prohibition and criminalization,” said Justin Strekal, political director for the National Organization for the Reform of Marijuana Laws, in a statement.

Yet not everyone in the marijuana reform movement was celebrating. In a letter sent to leading Democrats before the vote, a coalition of civil rights and drug reform groups warned lawmakers that the bill does not take a “holistic” approach to addressing the harms caused by marijuana prohibition. That requires fully decriminalizing marijuana at the federal level, which would bring relief to many communities of color hit hard by the war on drugs and largely “shut out of the emerging and booming marijuana industry.” Marijuana is still considered a Schedule I drug under federal law, which means the government considers it illegal and of no medicinal value.

“The banking bill is just a Band-Aid to a problem that needs de-scheduling to actually fix,” said Queen Adesuyi, policy coordinator for the nonpartisan political advocacy group Drug Policy Action, in an interview.

Adesuyi said removing marijuana from the Schedule I list would fix the banking problem in the process — without leaving communities of color behind. Adesuyi is a part of the movement for “marijuana justice,” the idea that marijuana reform must address the racist legacy of the war on drugs. There is currently comprehensive legislation in Congress that would do just that, and it’s sponsored by leading Democrats and several presidential contenders, including Senators Cory Booker, Kamala Harris and Elizabeth Warren. Sen. Bernie Sanders, one of the first major presidential candidates to support nationwide legalization, includes marijuana justice in his 2020 platform.

However, Adesuyi and other advocates worry House Democrats may put marijuana reform on the back burner now that they’ve taken some kind of action by passing the banking bill, even though that legislation primarily benefits financial institutions and the cannabis industry.

“Oftentimes, when Congress addresses an issue, they take one bite out of that apple, and that’s it for that issue for several Congresses after that,” Adesuyi said.

Polls show public support for marijuana legalization reaching as high as 66 percent, and local jurisdictions across the country continue to decriminalize the possession of small amounts of marijuana for adults. Recreational marijuana is now legal in 11 states and D.C., putting huge swaths of the country at odds with federal law. Federal legislation appears inevitable, and marijuana justice activists are demanding that lawmakers get it right.

“The banking bill did not have to be voted on last week; the House could have voted as late as January, providing plenty of opportunity to allow for a more comprehensive bill that addresses the actual issues affecting communities of color to be voted on first,” Adesuyi said.

Marijuana prohibition contributes to the mass criminalization of hundreds of thousands of people every year, and there remains a vast racial disparity in enforcement. Despite expanding legalization, new data released Monday by the FBI shows that marijuana arrests increased nationally for a third year in a row in 2018, when police made 663,367 arrests for marijuana-related violations.

People of color and whites use marijuana at roughly the same rates, but Black and Latinx people are much more likely to be targeted by police and arrested on marijuana charges, according to the American Civil Liberties Union. Last month in Louisville, Kentucky, the county prosecutor announced that he would no longer prosecute people for possessing small amounts of marijuana after the local newspaper reported that Black drivers were cited for marijuana at a rate six times higher than whites.

Drug criminalization is a significant driver of mass incarceration, which has ripped communities of color apart for decades and saddled hundreds of thousands of people with criminal records. Democrats have introduced a number of bills to address these issues, including the MORE Act, the most comprehensive marijuana reform legislation ever introduced in Congress.

The MORE Act would de-schedule marijuana, decriminalizing cannabis at the federal level and allowing states flexibility to create their own laws. The bill would also put a 5 percent sales tax on legal marijuana sales and reinvest that revenue into social programs for communities that have been disproportionately harmed by marijuana prohibition and the war on drugs. The revenue would also fund loans for small business in the marijuana industry owned by socially and economically disadvantaged entrepreneurs, along with other initiatives aimed at ensuring that people of color do not face barriers to participating in the legal marijuana industry, including previous marijuana convictions.

The MORE Act also contains provisions aimed at expunging marijuana charges from criminal records and allowing for people currently incarcerated or under supervision for marijuana crimes to request resentencing. The bill would prohibit the denial of federal benefits, including housing assistance, based on marijuana convictions, and prohibit judges from considering certain marijuana charges when making immigration decisions.

The MORE bill embraces the racial justice approach to marijuana reform by centering the needs of those who suffer most under prohibition. However, the 5 percent sales tax may ruffle feathers in the cannabis industry, which spent $2.7 million lobbying Congress in 2018 alone, according to the Center for Responsive Politics. So, advocates say, the industry is attempting to portray the recently passed banking bill as a racial equity-oriented piece of legislation. The Marijuana Policy Project, a pro-legalization group backed by the cannabis industry, released a statement last week claiming that the industry is “currently troubled by a lack of diversity within its ranks.” The banking bill, the group said, would help by making it easier for “minorities seeking to access to that industry” to obtain loans. Still, advocates for marijuana justice want more from Democrats.

After passing the banking bill, House Majority Leader Steny H. Hoyer released a statement assuring marijuana justice advocates that Democrats will continue pushing to de-schedule marijuana and provide relief to communities most impacted by prohibition. House Judiciary Chairman Jerry Nadler, the MORE Act’s sponsor in the House, pledged to advance the legislation in his committee, and Adesuyi said advocates will push him to do so in the coming weeks.

The issue has also come up on the presidential campaign trail, where several leading Democrats have integrated marijuana justice into their platforms. Adesuyi said most Democrats running for president are on the “right side of history” — except for former Vice President Joe Biden. Biden supports reducing penalties for marijuana but has said that possession should remain a misdemeanor offense. His criminal justice plan does not include the kind of community reinvestment championed by rivals such as Harris, Warren and Booker, three key lawmakers behind the MORE Act in the Senate.

Meanwhile, Adesuyi points out that South Bend, Indiana, Mayor Pete Buttigieg supports decriminalizing the possession of small amounts of any drug, which would be a crucial step toward ending mass incarceration and addressing the opioid overdose epidemic. Former tech executive Andrew Yang supports the decriminalization of opioids, but his plan is short on specifics beyond that.

Thanks to pressure from racial justice activists, many Democrats have come a long way on drug policy. However, it’s easy to pay lip service to reform, and sheer lack of political will in Washington has caused marijuana legalization and other reforms to languish in Congress for decades. If House Democrats stop at the banking bill and fail to pass legislation on marijuana justice before the next election, it will be a good sign that, at least, has not changed.

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