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On 4/20, ACLU Highlights Racist Marijuana Enforcement In New Report

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April 20, or 4/20, is a day when many people across the world celebrate marijuana culture by toking up, jamming out to tunes and filling up on munchies.

But the American Civil Liberties Union (ACLU) is using the unofficial cannabis holiday to draw attention to a serious issue: Despite the growing number of states that are enacting legalization laws, people of color are still much more likely to be arrested for marijuana than white people are—even though consumption rates are virtually identical across races.

In a new report released on Monday, ACLU reveals that while overall arrests are way down in states that have ended prohibition, racial disparities in remaining enforcement persist in those places. Meanwhile, some still-criminalized states are arresting black people for cannabis at almost ten times the rate that whites are busted.

Here are the key findings of the report—“A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform”—which is a follow-up to a similar study the organization released in 2013 that drew broad attention to unfair cannabis arrests rates at a time when legalization was just starting to become a major issue in American politics:

Marijuana Arrests Are Still Widespread Across The U.S.

Marijuana arrests nationally are down 18% since 2010, but there has been an uptick since 2015—even though more states are enacting legalization or decriminalization policies.

Cannabis arrests accounted for 43 percent of all drug arrests in 2018, the most recent year the report covers, and an overwhelming majority of those arrests—89.6 percent—were for possession alone.

Extreme Racial Disparities In Marijuana Enforcement Persist

Overall, black people are 3.64 times more likely than white people to be arrested for marijuana possession, even though usage rates are comparable. The trend toward legalization and decriminalization hasn’t reduced national trends in disparate enforcement—and in some parts of the country, they have worsened.

African Americans are more likely to be arrested for marijuana possession in every single state in the country.

“Racial disparities in marijuana possession arrests exist across the country, in every state, in counties large and small, urban and rural, wealthy and poor, and with large and small Black populations,” the report says. “Indeed, in every state and in over 95 percent of counties with more than 30,000 people in which at least 1 percent of the residents are Black, Black people are arrested at higher rates than white people for marijuana possession.”

Marijuana Arrests Decrease After Decriminalization, But Drop More Sharply In Fully Legalized States

Not surprisingly, states that legalized cannabis saw decreases in marijuana possession arrests—though ACLU found that some of these had been experiencing a downward trend even before prohibition was ended.

States with less far-reaching policies that simply decriminalize possession also see reductions in arrests, but not as much as in those places where prohibition is ended altogether. Cannabis possession bust rates are roughly eight times higher in decriminalized states than in ones that have fully legalized, though they are lower than in those where broad criminalization is still the law.

When it comes to arrests for selling marijuana, states with legalization saw an 81.3 percent drop between 2010 and 2018, while decriminalized states experienced a 33.6 percent reduction over that period.

Racial Disparities Persist Even Legalized Or Decriminalized States

Even while overall marijuana arrests are down in legalized and decriminalized states, black people are still much more likely to be busted for cannabis than white people are. “In every state that has legalized or decriminalized marijuana possession, Black people are still more likely to be arrested for possession than white people,” ACLU found.

“Most jurisdictions that have enacted progressive marijuana policy have failed to do so from a foundation of racial justice,” the report warns. “As such, though legalization and decriminalization appear to reduce the overall number of marijuana possession arrests for black and white people alike, such laws have not substantially reduced, let alone eliminated, the significantly larger arrest rates of black people.”

While on average legalized states have lower racial disparities in marijuana possession arrests compared those that have only decriminalized or where prohibition is in full force, Maine and Massachusetts—which both voted to legalize cannabis in 2016—had larger racial disparities in 2018 than they did in 2010.

“The one common finding across every state and the vast majority of counties is that black people are more likely to be arrested for possessing marijuana than white people, regardless of whether possession is illegal, legal, or decriminalized in their state,” the report concludes.

ACLU also reported that shortcomings in police data make it hard to get a full understanding of the unfair impact marijuana enforcement has across racial lines. For example, FBI arrest numbers do not distinguish between Latinos and those of other races, obscuring the particular impact that prohibition has on brown as well as black people.

Along with the report, ACLU launched an online tool that makes it easy for people to see just how discriminatory marijuana enforcement practices are in their own states.

Montana is the worst offender, with black people there being 9.6 times more likely to be arrested for marijuana than white people. Kentucky was not far behind with a disparate rate to the tune of 9.4.

In Colorado, the state with the least discriminatory enforcement rate, African Americans are still 1.5 times more likely to be busted for cannabis than white people are.

Zooming in further to the county level, ACLU found that even within states there are vast differences in how cannabis laws are being enforced.

In Franklin County, Massachusetts, a black person is 117 times more likely to be busted for marijuana possession than a white person is.

“The U.S. has waged a failed, devastating, decades-long war on drugs, including marijuana, in specific communities. Rounding up hundreds of thousands of people every year—millions every decade—for marijuana offenses, this racist campaign has caused profound and far-reaching harm on the people arrested, convicted, and/or incarcerated for marijuana offenses,” ACLU said. “Such harm cannot be undone, but as a country we can acknowledge, repair, and rebuild so that our future looks nothing like our prohibitionist past.”

Looking ahead, the organization is recommending that the federal and state governments legalize marijuana, but that they not stop there. In addition to expunging prior convictions and granting clemency to people still incarcerated on cannabis changes, the group is urging that newly legal markets be made equitable and accessible to people from communities that have been most harmed by the war on drugs.

“The question no longer is whether the U.S. should legalize marijuana—it should—or whether marijuana legalization is about racial equity—it is. It is also no longer about whether all levels of government should redirect resources away from prosecution of marijuana and toward public health investments and community collaborations—they should,” the report says.

“Rather, the question is: When states legalize, how can they do so through a racial justice lens to address the panoply of harms that have been selectively aimed at Black and Latinx communities for decades?” it continues.

Although opponents of marijuana legalization have pointed to previous data showing ongoing racial disparities in enforcement post-prohibition as a reason to argue against the policy change, ACLU is very clear that their new report should not be used to push for continued criminalization.

“In short, legalization by itself means fewer black people getting arrested. Conversely, prohibition means more—many, many more—black people getting arrested, jailed, convicted,” Ezekiel Edwards, who authored the report and is the director of the organization’s Criminal Law Reform Project, said in an email. “So it would be wrong to suggest that legalization is a wash regarding alleviating the negative impacts of marijuana criminalization.”

He also cautioned against stopping at simply decriminalizing cannabis possession, a policy that some legalization opponents say they support as an alternative between incarceration and a commercial marijuana market, pointing out that there are “more black people getting arrested in states that decriminalized than those that have legalized.”

That said, he noted that “legalization on its own does not address the racial disparities in marijuana arrests or achieve racial equity more broadly in marijuana reform.”

It is crucial, Edwards argued, for states to “center legalization in racial justice.”

“This means not only including equity-focused legislation led and informed by communities directly harmed by prohibition, but also tethering legalization to changing the way police departments treat communities of color,” he said. “If marijuana is legalized without reducing racial profiling and the unnecessary harassment and surveillance of people because of the color of their skin or the neighborhood they live in, there will be a drop in marijuana arrests but no tangible impact on the racial disparities of those arrests, or on other arrests for other petty offenses regarding which we consistently find the police treating people differently based on race.”

This piece was first published by Forbes.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

Tom Angell is the editor of Marijuana Moment. A 20-year veteran in the cannabis law reform movement, he covers the policy and politics of marijuana. Separately, he founded the nonprofit Marijuana Majority. Previously he reported for Marijuana.com and MassRoots, and handled media relations and campaigns for Law Enforcement Against Prohibition and Students for Sensible Drug Policy. (Organization citations are for identification only and do not constitute an endorsement or partnership.)

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DEA’s Hemp Rule On THC Content Misinterprets Congressional Intent, Senators Say

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A pair of senators representing Oregon sent a letter to the Drug Enforcement Administration (DEA) on Thursday to demand changes to the agency’s proposed hemp regulations.

This is the second congressional request DEA has received on the subject this week, with a group of nine House members similarly imploring a revision of a rule concerning hemp extractions on Tuesday.

DEA released an interim final rule (IFR) for the crop in August, and it said the regulations were simply meant to comply with the 2018 Farm Bill that legalized hemp and its derivatives. But stakeholders and advocates have expressed serious concerns about certain proposals, arguing that they could put processors at risk of violating federal law and hamper the industry’s growth.

Sens. Ron Wyden (D-OR) and Jeff Merkley (D-OR) said in the new letter that despite DEA’s claim that its IFR is only about compliance, the proposal “does significantly more.”

“The IFR treats hemp as a Schedule I controlled substance at any point its THC content exceeds 0.3% THC,” they said. “However, when Congress passed the 2018 Farm Bill, we understood that intermediate stages of hemp processing can cause hemp extracts to temporarily exceed 0.3% THC, which is why we defined hemp based on its delta-9 THC level.”

“In effect, the IFR criminalizes the intermediate steps of hemp processing, which is wholly inconsistent with Congress’s clearly stated purpose and the text of the 2018 Farm Bill,” the letter states.

In other words, while Congress intended to legalize hemp extracts, businesses that produce the materials could find themselves inadvertently breaking the law and be subject to enforcement action if THC levels temporarily increase beyond 0.3 percent.

A public comment period on DEA’s proposed rules closed on Tuesday. It saw more than 3,300 submissions, many of which focused on issues with the “work in progress” hemp THC issue.

Another issue identified by more than 1,000 commenters concerns delta-8 THC. The most widely known cannabinoid is delta-9 THC, the main component responsible for creating an intoxicating effect, but delta-8 THC from hemp is also psychoactive and is an object of growing interest within the market.

Because DEA’s proposed regulations state that all “synthetically derived tetrahydrocannabinols remain schedule I controlled substances,” some feel that would directly impact the burgeoning cannabinoid, as its converted from CBD through the use of a catalyst—and that could be interpreted as a synthetic production process.

In any case, it’s not clear whether DEA deliberately crafted either of these rules with the intent of criminalizing certain hemp producers—but stakeholders and advocates aren’t taking any chances.

The U.S. Department of Agriculture (USDA) has faced separate criticism over its own proposed hemp rules, though it has been more proactive in addressing them. Following significant pushback from the industry over certain regulations it views as excessively restrictive, the agency reopened a public comment period, which also closed this month.

USDA is also planning to distribute a national survey to gain insights from thousands of hemp businesses that could inform its approach to regulating the market.

Read the letter from Wyden and Merkley on DEA’s hemp proposal below:

Wyden and Merkley letter on… by Marijuana Moment

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USDA Releases, Then Rescinds, Hemp Loan Notice Following Congressional Action

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The U.S. Department of Agriculture (USDA) recently released—and then promptly rescinded—a notice on providing federal loans for hemp processors.

After the crop was federally legalized under the 2018 Farm Bill, USDA announced that regulations were being developed to offer direct and guaranteed loans to the industry. The federal agency unveiled those guidelines in April and then issued a new notice this month notifying applicants about the policy change ahead of the planned expiration of the earlier 2014 hemp pilot program.

The next day, however, it posted an “obsoleting notice” invalidating the prior document.

The new guidance “was developed with the understanding that operators would no longer be authorized to produce hemp under the 2014 Farm Bill Pilot Program,” USDA said. However, because Congress approved a continuing resolution that extends the program until September 30, 2021, the loan policies are not currently applicable.

That pilot program extension came at the behest of numerous stakeholders, advocates and lawmakers who have been pushing USDA to make a series of changes to its proposed hemp regulations. As those rules are being reviewed and finalized, they said it was necessary to keep the 2014 program in place.

The president signed the continuing resolution late last month, so it’s not clear why the notice on loan policy changes was released weeks later, which then necessitated a follow-up recision. But in any case, it’s another example of the fluidity and challenges of rulemaking for the non-intoxicating cannabis crop following its legalization.

It stands to reason that the loan processes outlined in the now-invalid notice will likely be consistent with what’s ultimately released next year, assuming the pilot program does expire then.

The primary rule change concerns licensing requirements for borrowers. After the 2014 regulations are no longer in effect, hemp loan applicants must be licensed under a USDA-approved state or tribal hemp program, or under the agency’s basic regulations if the jurisdiction the business operates in has not submitted its own rules.

Borrowers who are not licensed to grow hemp will be considered in non-monetary default and any losses will not be covered. For direct and guaranteed loans, hemp businesses must have a contract with USDA’s Farm Service Agency laying out termination policies and their ability to repay the loans.

As of this month, USDA has approved a total of 69 state and tribal hemp regulatory proposals—mostly recently for Illinois, Indiana, Michigan, New Mexico, Oklahoma and South Dakota. Illinois and Oklahoma were among a group of states that USDA had asked to revise and resubmit their initial proposals in August.

While the agency released an interim final rule for a domestic hemp production program last year, industry stakeholders and lawmakers have expressed concerns about certain policies it views as excessively restrictive.

USDA closed an extended public comment period on its proposed hemp regulations earlier this month. Its initial round saw more than 4,600 submissions, but it said last month that it was reopening the feedback period in response to intense pushback from stakeholders on its original proposal.

The federal Small Business Administration (SBA) said last month that the new 30-day comment window is too short and asked USDA to push it back, and it also issued a series of recommended changes to the interim final rule on hemp, which it says threaten to “stifle” the industry and benefit big firms over smaller companies.

All told, it appears that USDA is taking seriously the feedback it’s received and may be willing to make certain accommodations on these particular policies. The department’s rule for hemp is set to take effect on October 31, 2021.

In July, two senators representing Oregon sent a letter to Perdue, expressing concern that hemp testing requirements that were temporarily lifted will be reinstated in the agency’s final rule. They made a series of requests for policy changes.

Senate Minority Leader Chuck Schumer (D-NY) wrote to Perdue in August, asking that USDA delay issuing final regulations for the crop until 2022 and allow states to continue operating under the 2014 pilot program in the meantime.

Sen. Cory Gardner (R-CO) also called on USDA to delay the implementation of proposed hemp rules, citing concerns about certain restrictive policies the federal agency has put forward in the interim proposal.

The senators weren’t alone in requesting an extension of the 2014 pilot program that was ultimately enacted legislatively, as state agriculture departments and a major hemp industry group made a similar request to both Congress and USDA in August.

Amid the coronavirus pandemic, hemp industry associations pushed for farmers to be able to access to certain COVID-19 relief loans—a request that Congress granted in the most recent round of coronavirus legislation.

While USDA previously said that hemp farmers are specifically ineligible for its Coronavirus Food Assistance Program, that decision was reversed last month. While the department initially said it would not even reevaluate the crop’s eligibility based on new evidence, it removed that language shortly after Marijuana Moment reported on the exclusion.

Meanwhile, USDA announced last week that it is planning to distribute a national survey to gain insights from thousands of hemp businesses that could inform its approach to regulating the industry.

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New York Will Legalize Marijuana ‘Soon’ To Aid Economic Recovery From COVID, Governor Cuomo Says

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New York Gov. Andrew Cuomo (D) recently said that legalizing marijuana represents a key way the state can recover economically from the coronavirus pandemic.

During a virtual event last week to promote his new book on the state’s COVID-19 response, the governor was asked when New York will legalize cannabis for adult use.

“Soon, because now we need the money,” he said, according to a recording that was obtained by USA Today Network. “I’ve tried to get it done the last couple years.”

“There are a lot of reasons to get it done, but one of the benefits is it also brings in revenue, and all states—but especially this state—we need revenue and we’re going to be searching the cupboards for revenue,” he said in remarks that will be released in full in a podcast in the coming weeks by Sixth & I, which hosted the event. “And I think that is going to put marijuana over the top.”

Cuomo has included legalization in his last two budget proposals, but negotiations between his office and the legislature fell through both times, with sticking points such as how cannabis tax revenue will be allocated preventing a deal from being reached.

A top adviser of his said earlier this month that the plan is to try again to legalize cannabis in New York in early 2021.

“We’re working on this. We’re going to reintroduce this in our budget in January,” he said. “We think we can get it done by April 1.”

Cuomo was similarly asked about legalization as a means to offset the budget deficit caused by the pandemic in May.

While he said it’s the federal government’s “obligation as part of managing this national pandemic that they provide financial relief to state and local governments,” he added that “I support legalization of marijuana passage. I’ve worked very hard to pass it.”

“I believe we will, but we didn’t get it done this last session because it’s a complicated issue and it has to be done in a comprehensive way,” he said.

The governors of New Jersey, New Mexico and Pennsylvania have also made the case that implementing a regulated marijuana program can help their states financially recover from the health crisis.

Cuomo indicated in April that he thought the legislative session was “effectively over” for the year and raised doubts that lawmakers could pass cannabis reform vote remotely via video conferencing amid social distancing measures.

Assembly Majority Leader Crystal Peoples-Stokes (D) made similar comments when asked about the policy in April, though she seemed to signal that she laid partial blame for the failure to enact reform on the governor prioritizing other issues during the pandemic.

In June, a senator said the legislature should include cannabis legalization in a criminal justice reform package, making the case that the policy change is a necessary step especially amid debates over policing reform. That didn’t come to pass, however.

The New York State Association of Counties said in a report released last month that legalizing marijuana for adult use “will provide the state and counties with resources for public health education and technical assistance” to combat the pandemic.

Meanwhile, the state Senate has approved several modest marijuana reform bills in recent months.

The chamber passed a bill in July that broadens the pool of people eligible to have their low-level marijuana convictions automatically expunged. That was preceded by a Senate vote in favor of legislation to prevent tenants from being evicted solely because of their legal use of medical marijuana.

Thanks to a bill expanding cannabis decriminalization in the state that the governor signed last year, the New York State Unified Court System made an announcement last month outlining steps that people can take to clear their records for prior marijuana convictions.

Locally, a local law enacted in New York City this summer bans pre-employment drug testing for marijuana for most positions. It was finalized in July following regulators’ approval of certain exemptions.

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